Dr. Mohammed Ali vs Chief Secretary & Others

Debangsu Basak, J

The appellant has appealed against the judgment and order dated June 24, 2019 passed by the learned Single Judge disposing of the writ petition of the appellant alongwith the connected applications filed therein.

Learned advocate appearing for the appellant has submitted that, the appellant is the recorded tenant of land bearing survey nos. 575 /2 and 575/3 situated at Haddo village, Port Blair Tehsil, South Andaman. According to the appellant, land bearing survey no. 575/3 was gifted to him by Smt. Mubarak Bibi. Land bearing survey no. 575/2 was purchased by the appellant by a registered deed of conveyance dated February 20, 2003. Land bearing survey no. 575/2 and 575/3 came out of land bearing survey no. 575. Land bearing survey no. 575/2 and 575/3 stood mutated in the name of the appellant for a considerable period of time. Such mutation could not have been reopened by the revenue authorities.

Learned advocate appearing for the appellant has submitted that, the revenue authorities could not have decided the title to the immovable property. The revenue authorities not being vested with the jurisdiction to decide title, could not have demarcated the survey plot nos. 575/2 and 575/3 and arrive at the finding that, there is a pathway between the plot leading up to the plot belonging to private respondents.

On the issue of the maintainability of the writ petition, learned advocate appearing for the appellant has relied upon (2015) 5 Supreme Court Cases 423 (Radhey Shyam and another vs. Chhabi Nath and others) and (2008) 4 Calcutta High Court Notes 420 (Bhowanipore Gujrati Education Society and another vs. Kolkata Municipal Corporation and others) and submitted that, since, the revenue authorities are not Civil Courts, a petition under Article 226 of the Constitution of India is maintainable. He has submitted that, although the revenue courts may have trappings of a Court, they cannot be considered as Civil Courts.

Relying upon (1993) 2 Calcutta Law Times 111 (Andaman & Nicobar Paper Mills Company Private Limited and another vs. Lieutenant Governor, Andaman and Nicobar Islands and others) learned advocate appearing for the appellant has submitted that, the Deputy Commissioner cannot declare the deed of gift as a nullity. The revenue authorities are bound by the title deed of the appellant. The revenue authorities have acted contrary to the title deeds of the appellant in respect of the properties concerned.

Learned advocate appearing for the appellant has submitted that, the learned Single Judge has failed to appreciate that, the decision of the Secretary (Revenue) was without jurisdiction and that, the consequent steps taken by the revenue authorities including that of the Deputy Commissioner were void and nullity. Since the revenue authorities could not have decided on the title, the revenue authorities could not have stated that there existed a pathway in between plot nos. 575/2 and 575/3 in the manner as sought to be done. Consequently, he has submitted that, the impugned order be set aside. The decision of the Secretary (Revenue) and the consequent steps taken by the revenue authorities purporting to act upon the decision of the Secretary (Revenue) should be quashed.

Learned advocate appearing for the respondent no.6 has submitted that, there is no perversity in the impugned order. The revenue authorities did not decide the title. The private respondents had approached the revenue authorities for demarcation of land and for access to their plots through a pathway. The revenue authorities have the jurisdiction to demarcate the land and allow a pathway. In doing so, the revenue authorities, in the facts of the present case, did not decide on the title to the immovable property concerned. They were not required to do so. He has submitted that, the revenue authorities had considered the records available with them and found that, there existed a pathway between plot nos. 575/2 and 575/3 leading up to the plots of the private respondents. The revenue authorities have directed the parties to do so. There being no infirmity in the decision taken by the Secretary (Revenue) and the consequent follow up steps taken by the Deputy Commissioner thereon, the writ petition was without merits and was rightly dismissed by the learned Single Judge.

Learned advocate appearing on behalf of the respondent no.5 has adopted the submissions made on behalf of the respondent no.6. In addition thereto, he has relied upon (1976) 3 Supreme Court Cases 642 (Vishwa Vijay Bharati vs. Fakhrul Hassan and others) in support of the contention that, the presumption of correctness in the revenue records did not extend when there are forged or fraudulent entries. According to him, the appellant relying upon forged and fabricated document, persuaded the revenue authorities to mutate the name of the appellant in the revenue records in respect of plot nos. 575/2 and 575/3. Such fraud was unveiled by the revenue authorities in the impugned orders. There being no infirmity in the action taken by the revenue authorities, he has submitted that, the learned Single Judge has rightly dismissed the writ petition.

As noted above, an issue as to whether, the decision of the Secretary (Revenue) exercising jurisdiction under the provisions of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 is a Civil Court within the meaning of the Code of Civil Procedure, 1908 or not and therefore, whether a petition under Article 226 of the Constitution of India is maintainable assailing such order of the Secretary (Revenue) has fallen for consideration.

Radhey Shyam and another (supra) has held that, all Courts in the jurisdiction of a High Court, are subordinate to it and subject to its control and supervision under Article 227 of the Constitution of India. It has also held that, control of working of the subordinate courts in dealing with their judicial orders is exercised by way of statutory appellate or revisional power or power of superintendence under Article 227 and not by way of writ jurisdiction under Article 226. After considering various precedents, it has held that, judicial orders of Civil Court are not amenable under Article 226 of the Constitution of India. A Writ of Certiorari does not lie against a judicial order passed by a Civil Court. Such order may be amenable to statutory appeal or revision or under Article 227.Orders of Civil Court stand on a different footing from the orders of authorities of tribunals or courts other than judicial/Civil Courts.

In Bhowanipore Gujrati Education Society and another (supra), the full Bench of the High Court has held that, power to exercise jurisdiction under Article 226 of the Constitution of India of a High Court is not excluded where a petition under Article 227 lies. It has answered the question as to whether a writ petition under Article 226 of the Constitution of India is maintainable to challenge orders of a statutory tribunal performing judicial functions in the affirmative.

There being a distinction between judicial order of Civil Courts and orders passed by authorities, tribunals or courts other than Civil Courts it has to be noticed as to whether the revenue authorities acting under the Regulation of 1966 performs judicial functions resulting in judicial orders of Civil Courts or not.

As appearing from the statement of objects and reasons of the Andaman & Nicobar Islands Land Reforms Regulation, 1966, the law relating to land revenue, powers of revenue officers, rights and liabilities of holders of land, land tenures and other matter relating to land, in the Indian territory of Andaman & Nicobar Islands was consolidated and amended by the Regulation of 1966.

Revenue officer has been defined in Section 2 (25) of the Regulation of 1966 as follows:-

"(25) "revenue officer" in any provision of this Regulation means such revenue officer as the Chief Commissioner may, by notification direct to discharge the functions of a revenue officer under that provision;"

Section 3 lays down the classes of revenue officers. The Regulation of 1966 is divided into 17 Chapters. Chapter III of the Regulation of 1966 lays down the procedure of revenue officers and revenue courts. There are 15 Sections in Chapter III. Section 17 of Regulation of 1966 confers powers upon a revenue officer while exercising any power under the Regulation of 1966 to inquire into or decide any question arising for determination between the government and any person or between the parties to any proceedings. It specifies that, when a revenue officer does so, it shall be treated as a revenue court. Section 18 of the Regulation of 1966 vests inherent powers on revenue court. Section 19 empowers a revenue officer to take evidence, summon person to give evidence. It also empowers a revenue officer to examine any person on commission. Section 20 of the Regulation of 1966 empowers a revenue officer to compel attendance of a witness. Section 27 of the Regulation of 1966 lays down that, unless otherwise expressly provided by or under the Regulation of 1966, the procedure laid down in the Code of Civil Procedure, 1908 shall so far as may be followed in all proceedings under the Regulation.

Chapter IV of the Regulation of 1966 lays down the provision with regard to appeal, revision and review. Section 30 of the Regulation of 1966 provides for a separate period of limitation to prefer an appeal. Section 34 of the Regulation of 1966 vest powers of review on every revenue officer either on its own motion or the application of any party interested. However, such power of review is on the grounds provided for in the Code of Civil Procedure, 1908. Section 36 of the Regulation of 1966 makes the provisions of the Limitation Act, 1963 applicable subject the provision of the Regulation.

Chapter V of the Regulation of 1966 deals with land and land revenue. Section 38 of the Regulations of 1966 vests the ownership of all land in the Union Territory of Andaman and Nicobar Islands in the Government. Any dispute between any person and the Government with regard to ownership of the land is to be first decided by the Deputy Commissioner and if any person is aggrieved by such decision such person may approach the Civil Court to contest the validity of any order passed under Section 38 (4) of the Regulation of 1966.

Chapter VII of the Regulation of 1966 deals with land records. It empowers the revenue authorities to, inter alia, prepare and alter record of rights, maintain a register for mutation and correct wrong entries in the record of rights. Section 86 of the Regulation of 1966 is of some significance. It lays down that, Civil Courts shall have jurisdiction to decide any dispute to which the government is not a party relating to any right which is recorded in the record of rights. Land records are to be prepared in terms of Section 88 of the Regulation of 1966. Section 89 of the Regulation of 1966 allows correction of wrong entry in the land records by a superior officer.

Chapter IX of the Regulation of 1966 deals with the boundaries, boundary marks and survey marks. Section 99 enjoins upon the holder of land adjoining a village road, village waste or land reserved for community purposes to demarcate the boundary and repair and renew the boundary. Section 101 allows a revenue officer specifically empowered to demarcate the boundaries of survey numbers or sub-division or plot number.

Chapter X of the Regulation of 1966 empowers the revenue authorities to revise the maps and records. Section 119 thereunder provides for a rebuttable presumption in favour of all entries in the record of rights until the contrary is proved. It also lays down that all decision under Chapter X shall be subject to a decision of the Civil Court if a party approaches a Civil Court challenging any decision taken under Chapter X.

Section 155 of the Regulations of 1966 permits a tenant to move the Court of the Sub Divisional Officer for partition of its share in a holding comprising of agricultural land. It is, however, provided in such section that, where, any question of title is raised, no such partition shall be made, until such question has been decided by a Civil Court.

The other section in the Regulations of 1966 which is of relevance in the context of the issue is Section 204 which comes under Chapter XVII. Section 204 lays down that, no suit or proceedings shall, unless otherwise expressly provided in the Regulation of 1966, lie or be instituted in any Civil Court with respect to any matter arising under and provided for by the Regulation of 1966.

On a harmonious construction of various provisions of the Regulation of 1966 it can be said that, the revenue authorities acting under the Regulation of 1966 are not vested with the powers to adjudicate upon title between private persons. Some of their decisions are subject to adjudication by Civil Courts, if the party affected by an order of a revenue officer approaches the Civil Court.

They have been vested by the Regulation of 1966 with limited jurisdiction of deciding specified disputes. Although they are empowered to effect a partition under Section 155 of the Regulation of 1966, they have not been empowered to decide any question of title. In fact, they are to await the decision of the question of title by a Civil Court. Section 204 of the Regulation of 1966, however, bars jurisdiction of the Civil Court in respect of any matter arising under and provided by the Regulation of 1966. Civil Court's jurisdiction can be ousted by a statute. Merely by reason of the ouster of the Civil Court's jurisdiction and vesting the powers to decide on such excluded matters with a statutory authority does not make such statutory authority deciding such excluded matters a Civil Court.

Section 5 of the Code of Civil Procedure, 1908 makes a distinction between Civil Courts and Revenue Courts. Sub Section 2 of Section 5 of the Code of Civil Procedure, 1908 defines revenue courts to mean a court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue of profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under the Code of Civil Procedure, 1908 to try such suits or proceedings as being suits or proceedings of a civil nature. When a revenue officer adjudicates an issue which the Regulations of 1966 empowers him to do so, his order results in judicial order. However, he does so deriving power from a legislation other than Section 9 of the Code of Civil Procedure, 1908. Section 9 of the Code of Civil Procedure, 1908 vests Civil Courts jurisdiction to try all suits of a civil nature excepting those expressly or impliedly barred. A revenue officer is not a judge within the meaning of Section 2 (8) of the Code of Civil Procedure, 1908. Revenue authorities discharging adjudicating powers under the Regulation of 1966 are to be classified as a revenue court and not as Civil Court.

In such circumstances, we are of the view that, revenue officers cannot be considered to be Civil Courts. Therefore, their orders are justiciable under Article 226 of the Constitution of India. Since the revenue officers are subordinate to the High Court, their orders are also amenable to judicial review under Article 227 of the Constitution of India. The scope of enquiry under Article 226 and 227 of the Constitution of India, by a High Court, while deciding a proceeding under any of them, are, however, different as noted in Radhey Shyam and another (supra).

The appellant has assailed an order dated July 31, 2018 passed by Principal Secretary (Revenue) and a notice dated September 4, 2018 issued by the Deputy Commissioner acting on the basis of the impugned decision of the Principal Secretary (Revenue) in the writ petition. By the impugned judgement and order dated June 24, 2019, the learned Single Judge had dismissed the writ petition with costs.

The contention of the appellant that, the Principal Secretary (Revenue) has acted beyond jurisdiction in purporting to nullify the mutation of the property in favour of the appellant, requires consideration. The appellant claims rights over plot nos. 575/2 and 575/3. These two plots arose out of plot no. 106/2. The plot no. 106/2 was renumbered as plot no. 575 in 1949. It was initially of 5,589 Sq. mtrs. It was latter described to be 6,438 Sq. mtrs. Five plots come into being out of plot no. 575 namely 575/1 measuring about 3,328 Sq. mtrs., mutated in the name of Mubarak Bibi, 575/2 measuring about 800 Sq. mtrs., mutated in the name of Kumari Azgari Begum, 575/3 measuring about 800 Sq. mtrs., mutated in the name of Mohammed Ali, 575/4 measuring about 800 Sq. mtrs., mutated in the name of Aktari Anand and 575/5 measuring about 800 Sq. mtrs., mutated in the name of Anwari Parker. These properties were dealt with by various deeds of gift. In 2007 an application for demarcation was made with the revenue authorities for the purpose of providing an approach road for plot no. 575/1. An order dated January 19, 2007 was passed by the revenue authorities stating that, the area in occupation of the various plots by the tenants did not tally with the records mentioned by the revenue authorities. The appellant had filed an objection thereto on February 24, 2007. Subsequent thereto, there were two transfers in respect of plot nos. 575/5 and 575/1.

Subsequent to such transfers, the transferees approached the Deputy Commissioner for demarcation to have access in respect of plot nos. 575/1 and 575/5 in the year 2013. The revenue authorities conducted a demarcation and found that there was a path to plot no. 575/1. Such path was demarcated. The path was found to be under the occupation of the appellant. The revenue authorities found that plot no. 575/5 did not have any approach road from any direction. The revenue authorities also found that, the appellant had encroached on to land belonging to plot nos. 575/4, 575/1 and 575/5. Thereafter, the revenue authorities proposed setting aside land for the path to allow access to plot nos. 575/1 and 575/2.

The respondent no. 6 in the writ petition filed a writ petition being WP No. 399 of 2014 seeking implementation of the proposal for the path. Such writ petition was disposed of by directing the Deputy Commissioner to hear the parties and if necessary act on the proposal dated July 24, 2014 or implement any other agreed formula. The Deputy Commissioner after hearing the parties passed an order dated July 13, 2015 directing the Sub Divisional Officer to enquire and issue instructions to the revenue staff not to depict path unless the same is recognised as a path.

This order of the Deputy Commissioner was challenged by two separate writ petitions filed by the respondent nos. 5 and 6 in the writ petition. By an order dated March 15, 2016 both the writ petitions were disposed of by setting aside the order dated July 13, 2015 of the Deputy Commissioner and directing the Deputy Commissioner to accept the proposal dated July 24, 2014. The order dated March 15, 2016 passed by the High Court was appealed against by the appellant herein. The appeal was partially allowed on April 28, 2016. The portion of the order dated March 15, 2016 directing the Deputy Commissioner to accept the proposal dated July 24, 2014 was set aside. The Deputy Commissioner was directed to hear the parties afresh and pass a reasoned order.

The Deputy Commissioner after hearing the parties, pursuant to the order of the Division Bench dated April 28, 2016 passed an order dated July 1, 2016. The Deputy Commissioner by such order held that, it was not possible to accept the proposal as parties were not in agreement for setting aside any area for the path. The respondent no.5 and 6 challenged such order of the Deputy Commissioner dated July 1, 2016 by way of a writ petition. Such writ petition was dismissed on the ground that the impugned order of the Deputy Commissioner dated July 1, 2016 was appealable under Section 28 of the Regulations of 1966.

Pursuant to such observation of the High Court dated November 18, 2016, the respondent nos. 5 and 6 filed an appeal before the Principal Secretary (Revenue). Such appeal was disposed of ex-parte by an order dated June 23, 2017. The appellant filed a writ petition challenging the order of the Principal Secretary (Revenue) dated June 23, 2017. Such writ petition was allowed by an order dated September 4, 2017 by directing the Principal Secretary (Revenue) to decide the appeal expeditiously after hearing the parties.

Pursuant to such order, the Principal Secretary (Revenue) after hearing the parties passed an order dated July 31, 2018. By order dated July 31, 2018, the Principal Secretary (Revenue) set aside the order dated July 13, 2015 of the Deputy Commissioner and directed the Deputy Commissioner to take steps to correct the area according to actual entitlement and provide right of way to all stakeholders by setting apart land, with a speaking order and clear demarcation of right of way. The Deputy Commissioner was also directed to take appropriate action against officials indulging in falsification and unlawful mutation of land records leading to litigations.

This order of the Principal Secretary (Revenue) was challenged by the appellant. Such writ petition of the appellant was disposed of by an order dated September 7, 2018 by the High Court directing the revenue authorities to proceed with the mutation. The revenue authorities were directed to inscribe in the records that it was subject to the litigation and that the same was subject to the result of any writ petition or any order or decree that may be passed by a Civil Court.

By an order dated October 1, 2018, the Deputy Commissioner, after noting that the High Court refused stay, and the Tehsildar had submitted a proposal for setting apart of the road/path, directed the Tehsildar to implement the proposal. A contempt petition was filed. By an order dated October 10, 2018, the revenue authorities were restrained from taking any steps in terms of the order dated October 1, 2018 of the Tehsildar. Subsequent thereto, orders dated October 12, 2018 and December 13, 2018 were passed by the High Court. The respondent nos. 5 and 6 in the writ petition preferred appeal from the orders dated October 10, 2018 and October 12, 2018. The appellate Court set aside such orders. The appellate Court allowed the interim arrangement based on the order dated December 13, 2018 to continue. The writ petition was subsequently heard finally and by the impugned order, dismissed with costs.

At no point of time in the numerous proceedings that the parties took before different fora had any of the parties raised any objection successfully that, the revenue authorities are not entitled to demarcate the plots in question at all or that, the revenue authorities cannot direct the parties to make a path way for the stakeholders. The jurisdiction to do so by revenue authorities was accepted by the parties to the proceedings. The parties to the proceedings may have grievance with regard to the decision on fact arrived at by the revenue authorities or procedure employed by revenue authorities to arrive at the decision on an issue of fact. Jurisdiction and the power of the revenue authorities to do so, however, remain unquestioned. Therefore, at this stage, we are not minded to permit the appellant to urge the ground of lack of jurisdiction.

In any event, as rightly contended on behalf of the appellant, the revenue authorities are not empowered to decide title to the properties. In the facts of the present case, the revenue authorities did not decide any title. They were requested to demarcate the plots concerned and were also requested to provide for a path way leading to the plots concerned. They did so. There is no infirmity in the decision of the revenue authorities in demarcating the plots and providing for a path way. In the event, the private parties have claims of title with regard to plots concerned they are to have the same settled before an appropriate Civil Court. It is clarified that, neither the order passed by revenue authorities in demarcating plots nor the decision of the revenue authorities in providing for a path way to the plots will prevent the private parties to establish their right, title and interest in respect of plots concerned before the appropriate Civil Court, in accordance with law. It is further clarified that, none of the observations made by this Court in this appeal will prejudice any of the parties in such litigation, should any of the parties approach a Civil Court for a decision on their right, title and interest over the plots concerned.

Andaman & Nicobar Paper Mills Company Private Limited & another (supra) had on the facts of that case, set aside an order passed by the Sub Divisional Officer. The fact scenario in the present case is different.

The issue as to whether, there was any forgery or fraud committed at the behest of the appellant in having the record of rights and mutation done in favour of the appellant with the revenue authorities at a given point of time or not was not called upon to be decided by the revenue authorities. The revenue authorities did not do so; therefore, the Court need not enter into that arena. Consequently, the ratio laid down in Vishwa Vijay Bharati (supra) need not be considered in the factual context of the present case.

In view of the discussion above, we find no reason to interfere with the impugned judgement and order dated June 24, 2019.

MAT No. 941 of 2019 along with the connected application therein being CAN No. 116 of 2019 are disposed of accordingly without any orders as to costs.