Manju Mondal v. The Chief Secretary And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR] *** MAT/46/2023 Manju Mondal 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.11 An order passed by a learned Single Judge in WPA/933/2023 dated November 20, 2023, has been impugned before this Court. His Lordship was of the view that when the report relied upon the authorities indicated that no encroachment by Suren in 1977 had been regularized, the heirs of Suren could not have any right for regularisation. The petitioner is one of the heirs of Suren. According to His Lordship, the order passed by the Settlement Officer in August 06, 1988, where nine encroachments had been recommended for regularisation, Suren's name was not recommended.

The report/recommendation was duly approved by the Lieutenant Governor. The said order was not challenged by said Suren.

Mr.Jayapal submits that the order impugned before His Lordship in the Writ petition, was passed by the Deputy Commissioner, North and Middle Andaman pursuant to a direction of this Court in WPA/570/2023.

By the order passed in WPA/570/2023, a learned Single Judge had directed the authority to consider the representation of the petitioner dated March 10, 2023, with regard to her prayer for grant of licence in respect of the government revenue land, upon regularisation of the encroached. The land comprised of 1.33 hectares in survey No.156/2 at Village Swadesh Nagar under Mayabunder Tehsil.

While disposing of the said representation of the petitioner, pursuant to the order dated April 21, 2023, the Deputy Commissioner relied on a field report of the Tehsildar, Mayabunder dated July 15, 2023. From the said report, it appeared that the grandfather of the petitioner, Narayan Mondal was allotted survey Nos.139/1, 140 and 332/4, measuring an area of 4.05 hectares of land under the colonization scheme, at Swadesh Nagar Village at Mayabunder Tehsil. The said property was mutated in favour of the legal heirs i.e. Suren Mondal and others. The petitioner claims to be an heir of Suren Mondal. It also appears that the heirs of Suren, have been recorded as co-tenants of the property. Thus, the prayer for regularization was rejected on the basis of such field report.

According to Mr. Jayapal, the said report was neither handed over to the petitioner nor had the said report been prepared in accordance with the provisions of the colonization scheme. The specific averment to that effect has been made in paragraph 13(i) at page 9 of the writ petition. It is settled law, that if a report is used against any person, a copy of the same has to be handed over to him/her, before the authority decides the matter in issue, on the basis of such report. Reference is made to the decision in the case of the Managing Director, ECIL vs. B. Karunakar reported in (1993) 4 SCC 727.

Under such circumstances, when the writ petition was filed, specifically challenging not only the correctness of the report relied upon by the authority, but also on the ground that the report which was relied upon behind the back of the petitioner, had not been supplied to the affected party, the issue of violation of the principles of natural justice ought to have been decided. Thus, a further chance should be given to the petitioner to agitate the dispute involved in the writ petition, before the learned writ court.

Under such circumstances, the order impugned is set aside, not on the ground that the findings are incorrect, but precisely for the reason that the issues involved in the writ petition do not appear to have been addressed, in so far as non-furnishing of the alleged report and the challenge to the said report, are concerned.

Under such circumstances, the appeal is allowed. The order impugned is set aside. The matter is remanded to the learned Single Judge, for fresh decision.

As this is an intra-court appeal, there is very limited scope for interference. However, as we see that the grounds taken in the writ petition were not specifically addressed by His Lordship, this is a good case for remand. Affidavit-in-opposition to the writ petition, annexing all documents to be relied upon by the respondents, be filed within a period of four weeks from date; reply thereto, if any be filed within two weeks thereafter.

Let the matter appear before the learned Single Judge before the next available Circuit Bench, after expiry of the aforementioned period.

We make it clear that we have not gone into the merits of the claims of the appellant and all the points are kept open for a decision by the learned writ court.

The appeal is accordingly disposed of.

( Shampa Sarkar, J. ) ( Tirthankar Ghosh, J. )