Bidhan Ch Poddar v. The Lt.Governor And Others

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/1100/2023 Bidhan Ch Poddar Vs.

The Lt. Governor and others Ms. G.Mini ... for the petitioner Mr. V.D.Sivabalan ... for the respondents January 9, 2024 [SR] Item No.33 The respondent raises an objection with regard to the maintainability of the writ petition on the ground that the order impugned is an appealable order.

I find that the order was passed under a misconception and misinterpretation of the direction of the Lieutenant Governor. The law applicable was also ignored. Hence, the said order is subject to judicial review. The decision making process is flawed. Thus, this Court is inclined to take up the matter.

The Sub Divisional Officer has passed the order impugned, in violation of the direction of His Excellency Lieutenant Governor. There was a clear direction upon the Sub Divisional Officer, South Andaman, to complete the diversion proceeding in accordance with due process of law, within a period of 15 days from the date of receipt of the order dated 10.10.2023. Such order was passed in the second appeal preferred by the petitioner against the order by which the petitioner's prayer for diversion of agricultural land to house site, had been rejected by the other authorities.

The earlier ground for rejection of the prayer for diversion, which was passed by the Sub Divisional officer, was affirmed by the appellate authority. The ground for rejection was that the land fell within the Reserved Forest area. Aggrieved by the orders passed by both fora, the petitioner approached the Lieutenant Governor, by filing an appeal under the provisions of law.

The petitioner stated that he was the recorded tenant in respect of the land bearing survey no. 259/31/A/26 measuring an area of 261 Sq.mtrs., situated at Prothrapur village under Port Blair Tehsil, South Andaman. The petitioner, along with 26 persons, purchased 0.7496 hectares of land, by a registered sale deed and subsequently their names were mutated. The land was later subdivided by the Deputy Commissioner, South Andaman and the petitioner's land was assigned survey no. 259/31/A/26.

The petitioner applied for diversion of the land measuring an area of 0.0261 hectares in the year 2019 to house site. The Sub Divisional Officer, South Andaman rejected the request for diversion by an order dated July 24, 2019. Such order was passed, based on the report of the Town and Country Planner dated 28.05.2019. As per the report, the land fell within the Reserved Forest Zone and construction was totally prohibited in such area.

The petitioner moved the appellate forum, namely, Deputy Commissioner, South Andaman under Section 28 of the ANI LR&LRR, 1966. The appeal was disposed of, upholding the order of the Sub Divisional Officer. The petitioner preferred the second appeal before His Excellency Lieutenant Governor.

Some of other persons who purchased the land, had applied for such diversion after the lands were sub divided. Such prayer was allowed. Details of such persons, have been provided in the order passed by the Lieutenant Governor. According to the petitioner, the land was in an urban area and was under the Municipality. As the same fell within the municipal area, the question of the land being within the reserved forest zone, would not apply. All the nearby lands had been diverted to house-site. It is specifically averred that out of 26 persons who purchased the land with the petitioner, at least six of them were granted diversion of the land to house site. The Lieutenant Governor found that the geo-coordinates of the said holdings, which were allowed to be diverted, were outside the Brichgunj Protected Forest Block.

The land revenue was assessed in respect of the land holdings. The land revenue was also paid by the petitioner upto 2022. The master plan was also looked into. It appears that some areas in the vicinity had been declared for forest use, but no notification to that effect had been issued by the Forest Department and the land continued to be a revenue land.

The Lieutenant Governor expressed that it was difficult to imagine that after mutation and sub division of the land into plots, amongst the purchasers, the land could be treated as a reserved forest. The actions of the revenue department would indicate that the land was retained by the revenue department. The forest department also submitted that the land holding of the petitioner was outside the bounds of the Brichgunj Protected Forest Block and the boundary ran adjacent to the Prothrapur revenue village.

The map of the revenue department also indicated that the petitioner's land was in the middle of other plots of land, which had been diverted along with the construction thereon. The Lieutenant Governor came to the conclusion that all the surrounding lands belonged to the revenue department. Argument that the land in question was reserved forest, did not hold good. Thus the orders impugned before the Lieutenant Governor were set aside and the Sub Divisional Officer was directed to complete the diversion proceeding, in accordance with law, within 15 days.

This Court finds from the reasons given by the Lieutenant Governor, that the petitioner's prayer for diversion of the land to house site was found to be in order. Only the necessary legal formalities and the formal order was left to be passed by the Sub Divisional Officer, who is the prescribed authority under the law. The order does not leave any further scope for the Sub Divisional Officer to revisit the issue and reject the claim on any other ground.

It has been recorded in the order of the Lieutenant Governor that all the areas around by the petitioner had been converted to house site, with construction thereon. The allegation of the land being a reserved forest was disbelieved. The forest department also denied that the land fell within a forest area. The Sub Divisional Officer was directed to complete the diversion proceeding, which means that the highest authority was of the opinion that the diversion should be allowed according to law. Only the legal formalities were to be observed and completed by the appropriate authority.

Regulation 40 (6) ANI LR&LRR 1996 provides that in case land used for any purpose, is diverted to any other purpose, the land revenue can be assessed and the Sub Divisional Officer shall have the power to impose a premium on the diversion, in accordance with the rules made under the regulation.

Under such circumstances, the impugned order is set aside. The matter is sent back to the Sub Divisional Officer, South Andaman to complete the diversion proceeding, as directed by the Lieutenant Governor by applying law, i.e. Regulation 40 (6) of AN I LR& LRR, 1966 and the rules framed thereunder.

The diversion shall be allowed, upon payment of the premium, which the authorities shall calculate and intimate indicate to the petitioner.

The entire exercise shall be completed within a period of three months from date of communication of this order. There is no room for any doubt that the Lieutenant Governor was of the view that the diversion should be completed and allowed, subject to the law applicable and the law applicable is payment of premium for the constructions thereon and change of user.

The writ petition is disposed of.

All parties to act on a server copy of this order. (Shampa Sarkar, J.)