Abiram Das vs Ndaman & Nicobar Administration & Ors

The petitioner claims to be the owner of a plot of land situate at Khudirampur village, Diglipur. An order dated 15th June, 2018 was passed by the Tehsildar, Diglipur ostensibly in exercise of his power under Section 202 of the Andaman & Nicobar Islands Land Revenue and Land Reform Regulation, 1966 ( in short the 1966 Regulations) directing the eviction of the petitioner from the alleged unauthorized possession of government revenue land.

Section 202 of the 1966 Regulations reads as follows:-

"202. (1) Any person who unauthorisedly takes or remains in possession of any unoccupied and or abadi may be summarily ejected by order of the Tahsildar and any crop which may be standing on the land and any building or other work which he may have constructed thereon, if no removed by him within such time as the Tehsildar may fix, shall be liable to forfeiture.

(2) Any property forfeited under sub section (1) shall be disposed of in such manner as the Tahsildar may directed and the const of removal of any crop, building or other work and of all works necessary to restore the land to its original condition shall be recoverable from such person as an arrear of land revenue.

(3) Such person, subject to the provisions of sub-section (5), also be liable, at the discretion of the Tahsildar, to a fine which may extend to two hundred and fifty rupees.

(4) The Tahsildar may apply the whole or any part of the fine imposed under sub-section (3) to compensate persons who may, in his opinion, have suffered loss or injury from such unauthorized occupation.

(5) if, in any case, the Tahsildar considers that circumstances of the case warrant imposition of a fine exceeding two hundred and fifty rupees he may refer the case to the Sub-Divisional Officer who shall then, after giving the party concerned an opportunity of being heard, pass such orders in respect of fine as he may deem fit.

(6) If any person ordered to be ejected under sub-section (1) has constructed any work of a permanent nature under a bonafied mistake, he may apply to the Deputy Commissioner for condonation of the encroachment and the Deputy Commissioner may, if satisfied that the work was constructed under a bonafied mistake and that the land can be allowed to remain in the possession of such person without any serious detriment to public purpose, condone the encroachment under such terms as he may deem fit.

(7) No order made under sub-section (1) shall prevent any person from establishing his right in a civil court.

(8) If notice of an intention to institute a suit is delivered to the Tahsildar, he shall desist from carrying out his order under sub-section (1) for a period of three months, and if such suit is filed within such period he shall stay his proceedings pending the decision of the civil court."

The petitioner immediately filed an application under Section 202 (8) of the 1966 Regulations in the court of the Tehsildar/Executive Magistrate putting on record his intention to file a civil suit against the state under Section 202 (8) of the 1966 Regulations. This was done by the petitioner on 21st June, 2018. The very next day i.e. 22nd June, 2018, the Tehsildar, Diglipur passed another order reiterating that the petitioner should be evicted from the plot in question since he was in unauthorized occupation of the said land which was government revenue land. By the said order the Tehsildar purported to have rectified his earlier order dated 15th June, 2018 by stating that the order shall be deemed to be passed under Section 104 of the 1966 Regulations instead of Section 202 of the said Regulations.

The writ petitioner immediately approached this court and was successful in obtaining an interim order of stay of the eviction orders passed by the Tehsildar. The writ petition has come up for final disposal today.

I have heard learned counsel for the parties. I am minded to set aside the impugned orders of eviction primarily on the ground of breach of the principles of natural justice. In the order dated 22nd June, 2018 it has been stated that a report has been received by the Tehsildar from the field staff from which it appears that the petitioner has made unauthorized construction on government revenue land. No copy of such report was made available to the writ petitioner. It is elementary law that if an authority proposes to take action against a citizen which will have adverse civil consequences for that person, on the basis of certain materials, such materials must be disclosed to the concerned person and such person must be granted an opportunity to deal with such materials. This was not done in the present case. The petitioner was kept in the dark as regards the report on the basis of which the eviction order dated 22nd June, 2018 was passed.

Further, in my opinion, an opportunity of a personal hearing ought to have been given to the petitioner by the concerned authority. This has now become recognized as a limb of the principles of natural justice. No person can be condemned unheard. Any action of an authority which may have adverse consequences for a person must be preceded by affording to that person an opportunity of hearing. This was also not done in the present case.

For the reasons afore stated, the impugned orders of eviction dated 15th June, 2018 and 22nd June, 2018 are set aside. The matter is remanded back to the Tehsildar, Diglipur to take a reasoned decision in accordance with the applicable Rules/Regulations including Section 202 of the 1966 Regulations. He shall give an opportunity of personal hearing to the petitioner or his authorized representative before passing any order.

Mr. Mandal learned Senior Counsel for the Administration submits that an order should be passed restraining the petitioner from making any further construction on the land in question. I am not inclined to pass any such order. However, I make it clear that if the petitioner makes any construction on the land in question and ultimately fails to establish his right in respect of the said land before the appropriate forum, he shall not be entitled to claim any special equity in respect of such construction and the construction shall be liable to be demolished.

In the event the Tehsildar takes a decision against the petitioner and reiterates his order for eviction of the petitioner, such order shall not be given effect to for a period of two months from the date of the order.

The writ petition being WP No. 140 of 2018 is accordingly disposed of.