Bala Chandran And Others vs Andaman And Nicobar Administration And Others

Sabyasachi Bhattacharyya, J

The grievances of the petitioners are manifold. It is submitted by learned counsel for the petitioners that there have been as many as four demarcations in respect of the properties in question. While initially the land was demarcated for the purpose of building of public road, some of the lands for such purpose were surrendered by many people including the petitioners. Such demarcation was again reopened and one Shanta Devi was alleged to have encroached upon the path, which comprised of the surrendered land of the petitioners and others, by building a water tank thereupon. Subsequently, there was a direction upon the competent authorities to remove the portion of the water tank which encroached upon the path.

However, thereafter, there was another demarcation which, as per learned counsel for the petitioners, was de hors the law, since the concerned officer acted as a revenue court on the previous occasion and the principle of res judicata was applicable to the matter.

Surprisingly, on the basis of the third demarcation, the path-in-question shifted, thereby apparently encroaching the portion occupied by the petitioners, which were finally decided to be the petitioners' portion, upon satisfaction of all sides being recorded by the previous orders. Such contention is sought to be substantiated by learned counsel for the petitioners by placing reliance on a map produced by the authorities which clearly shows that there is a gap between the water tank of the said Shanta Devi and the pathway, which could not have been the case in the event the previous directions had been complied with, thereby demolishing only the portion of the tank situated on the pathway, which would retain the remaining portion of the tank immediately adjacent to the pathway and there could not be any gap in-between.

Apart from such irregularities, a fourth demarcation was held, contrary to the principles of Natural Justice, according to the petitioner, on the basis of which an eviction order was passed by the Tehsildar, acting as revenue court, against the petitioners. Such purported survey, conducted on April 11, 2019, an election day, was set aside vide order dated July 12, 2019 passed by a coordinate Bench of this Court in W.P. No. 184 of 2019, consequentially also setting aside the eviction order dated June 28, 2019 passed by the Tehsildar in TPB/RC No.1174 of 2019, which was the eviction proceeding against the petitioners.

However, the learned Single Judge granted full liberty to the opposite parties, including the Tehsildar, to take appropriate steps in accordance with law for the removal of the perceived encroachment of revenue land by the petitioners.

It appears from the annexures to the present petition that subsequently another notice, this time for a fifth demarcation, was issued on August 21, 2019, pursuant to which the demarcation was to be conducted on August 28, 2019 at 10.00 AM.

Learned counsel for the petitioners argues that the said demarcation was never conducted on August 28, 2019. Such contention , of course, is controverted on behalf of the opposite parties.

Pursuant to such alleged fifth demarcation conducted on August 28, 2019, the impugned order dated September 24, 2019 was passed by the Tehsildar, apparently in his capacity as a judicial authority, although the caption of the said order read that it was passed by the Office of the Tehsildar, indicating that the concerned Tehsildar did it in his administrative capacity.

To boot, the number of the proceeding, as given in such order, was TPB/RC No.1174 of 2019, which had been finally disposed of previously by passing an eviction order against the petitioners, and, in turn, was set aside by the coordinate Bench of this Court vide order dated July 12, 2019 passed in W.P. No.184 of 2019.

Learned counsel for the petitioners argues that this Court ought not only constrict itself to the limited scope of the illegality of the impugned order but also to take judicial notice of the illegality going on in the concerned revenue court hierarchy. Certain orders are pointed out, which was apparently signed by the Reader of the Office of the Deputy Commissioner, instead of the Deputy Commissioner himself, which also shows that there is a patent irregularity in the functioning of the entire hierarchy of authorities designated under the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations, 1966. It is submitted that the said irregularities prompted an agitation from the bar, which has only recently been resolved.

Learned counsel appearing for the opposite parties controverts the submission of the petitioners, that no demarcation was held on August 28, 2019. Learned counsel submits that since the coordinate Bench of this Court vide order dated July, 12, 2019 gave the Tehsildar and other opposite parties full liberty to take appropriate steps in accordance with law for the removal of perceived encroachment of revenue land by the petitioners, the order dated September 24, 2019 was absolutely justified.

It is further submitted that a challenge had been taken out by the present petitioners against the previous demarcation, i.e. the third demarcation, before the Deputy Commissioner, which is still pending and an order staying the hands of the Teshildar with regard to such eviction of the petitioners has already been passed therein, thereby rendering the present application under Article 227 of the Constitution of India redundant.

However, learned counsel for the petitioners submits that the irregularities did not end there but a copy of the order dated September 24, 2019 was served on the present petitioners only on October 09, 2019. In the interregnum, it is pointed out, the Deputy Commissioner stayed the hands of the Tehsildar by an order dated September 30, 2019. It is, thus, alleged that there is every possibility that the order was passed on a back-date, prior to such restraint order being passed by the Deputy Commissioner, to legalize the illegal act done by the Tehsildar.

Upon hearing both sides, it is prima facie apparent that the Tehsildar had no business in reviving TPB RC No.1174 of 2019, let alone in his administrative capacity, since the order reflects that the fresh eviction was directed in the said proceeding itself, which had already been set aside after being culminated, by a coordinate Bench of this Court. The caption of the order dated September 24, 2019 displays in bold letters that it was done by the Office of the Tehsildar. It is submitted on behalf of the respondent that the Tehsildar has a dual capacity under the 1966 regulations and the expression "Office of the Tehsildar" was an obvious misprint, since the tenor of the order shows that the Tehsildar acted in the capacity of a Court and a challenge is provided by the regulations themselves against such an order before the Sub Divisional Officer. Hence, the oppsite parties' contention primarily is that this court ought not to interfere in view of an alternative remedy being available.

However, in the facts and circumstances of the case, the following illegalities/irregularities glare at the face from the records:-

(i) The Tehsildar acted de hors the law and without jurisdiction in reviving TPB RC No.1174 of 2019 after the same had culminated in an eviction order previously, which was set aside in WP No.184 of 2019.

(ii) There apparently could not have been any fourth or fifth demarcation, in view of the previous demarcations having been held under the aegis of orders of the Tehsildar, apparently acting in his judicial capacity, thereby attracting the principle of res judicata, which vitiates any further demarcation, including the one which was the basis of the eviction order-in-question.

(iii) It is also in doubt as to whether the Tehsildar acted bona fide in passing an order of eviction on the basis of a demarcation conducted on August 28, 2019, purportedly on September 24, 2019, but, due to some mysterious reason, serving a copy of the same on the petitioners on October 09, 2019, which, by a strange co-incidence, is subsequent to the order of the Deputy Commissioner dated September 30, 2019 asking the Tehsildar to stay his hands in the matter.

In view of a palpable prima facie case having been made out by the petitioners on the aforesaid grounds, this application under Article 227 of the Constitution of India is required to be heard on merits. Accordingly, the opposite party is directed to file its affidavit-in-opposition, enclosing all relevant documents, by a fortnight from date. Reply, if any, shall be filed by the end of the first week of the next Circuit by the petitioners.

Let this matter appear for hearing before an appropriate Bench in the next Circuit, in the second week of such Circuit.

There shall be stay of operation of the order dated September 24, 2019, whereby the Tehsildar, Port Blair directed eviction of the petitioners, till disposal of the revisional application.

However, it is made clear that the Deputy Commissioner will be free to proceed with the challenge levelled by the petitioner against the third demarcation, but the result of such proceeding will abide by the result of the present revisional application.