K.Hydroos vs Andaman & Nicobar Administration And Others

Debangsu Basak, J

The petitioner has assailed an order dated May 24, 2018 passed by the Sub Division Officer, South Andaman, Port Blair and an order dated June 13, 2018 passed by the Tehsildar, Ferrargunj Tehsil.

Learned advocate appearing for the petitioner had submitted that, a plot of land was sought to be divided between the petitioner and the private respondent by the impugned orders. The petitioner being a joint tenant in respect of the plot concerned, was entitled to a notice of the proceedings in which the plot of land sought to be partitioned. He has drawn the attention of the Court to the provisions of the Regulation 135 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966. He has submitted that, the Rules framed under Regulation of 1966 requires a notice under Form F to be served upon the petitioner. The same was not done in the present case. Therefore, the order of the respondent no.4 is bad in law.

Learned advocate appearing for the petitioner has submitted that, there was suit for partition between private parties. The plot in question was partitioned in the suit for partition. A Special Leave Petition is still pending against the decree for partition. The private respondent did not put the decree into execution. The respondent nos. 3 and 4 could not have acted on the basis of such decree as the decree is yet to attain finality.

Learned advocate appearing for the petitioner has relied upon Regulations 3, 84 and 87 of the Regulations of 1966 and submitted that, the respondent no. 3 and 4 did not have any jurisdiction to pass the impugned orders.

Learned advocate appearing for the private respondent has submitted that, the impugned order is appealable under regulation 28 of the Regulations of 1966. She has submitted that, the plot in question was subject matter of a suit for partition between the private parties. A decree of partition was passed in respect of such property. Such decree has attained finality. The private respondent is entitled to give effect to the final decree for partition. On the basis of such final decree for partition, the private respondent had applied for correction of the Record of Rights to make the Record of Rights in consonance with the final decree for partition. An execution petition was not required.

Referring to the conduct of the petitioner, learned advocate appearing for the private respondent has submitted that, petitioner was well aware of the proceedings. The petitioner had appeared in the proceedings. The petitioner had contested the jurisdiction of the authorities to hear such proceedings. The petitioner had failed on such issue. Thereafter, the petitioner choose not to appear before the authority. Therefore, according to her, the petitioner cannot raise the point of jurisdiction or lack of notice of the proceedings.

Learned senior advocate appearing for the respondent nos. 1, 2, 3 and 4 has submitted that, the impugned order is appealable under Regulation 28 of the Regulations of 1966. Therefore, the Writ Court should not entertain the instant writ petition.

The petitioner and the private respondent are joint tenants in respect of a plot of land. A suit for partition being Title Suit No. 06 of 2005 was filed before the learned Civil Judge, Senior Division at Port Blair by the petitioner. A preliminary decree was passed in such suit on March 27, 2007. The preliminary decree declared that, the petitioner and the private respondent have one half share each in the suit property. A Commissioner of Partition was appointed to partition the suit property by metes and bounds. A Survey Commissioner was appointed in the suit. The report of the Commissioner was accepted as no objection was raised by parties to such report. A final decree for partition was passed. Thereafter, by an order dated July 5, 2012, the same was corrected by the learned Court. The order dated July 5, 2012 was challenged. Such challenge was rejected by the learned Court by an order dated April 2, 2014. A civil revisional application was filed against the order dated April 2, 2014. Such revisional application was rejected with the observation that, the petitioner can prefer an appeal against final decree, if he has the right to do so. Petitioner filed a petition under Section 152 of the Code of Civil Procedure for amendment of final decree. The same was rejected by the learned Civil Judge. Another civil revisional application was filed by petitioner which was subsequently withdrawn. Thereafter, petitioner preferred an appeal against the final decree. An application for condonation of delay was dismissed by an order dated June 11, 2015 after holding that the decree by consent of the parties. A revisional application was filed against the rejection of the appeal. Such revisional application was dismissed on September 3, 2015. The petitioner preferred a Special Leave Petition and by an order dated April 22, 2016, the Hon'ble Supreme Court disposed of such Special Leave Petition. An application for clarification was filed by the petitioner before Hon'ble Supreme Court where the Hon'ble Supreme Court observed that, the petitioner is free to avail of those remedies under law as to which the petitioner is entitled to.

Thereafter, the petitioner filed a petition under Section 14 of the Limitation Act, 1963 before the learned District Judge. By an order dated February 15, 2017 such petition was allowed subject to payment of cost. Such order was challenged by the private respondent herein in a revisional application. By an order dated March 29, 2017, the civil revisional application of the private respondent was allowed and the proceedings launched by the petitioner was set aside. Thereafter, the petitioner filed another proceedings before the learned Court which was rejected by an order dated October 13, 2017. This order was challenged by the petitioner in a civil revisional application which was dismissed on November 22, 2017.

The private respondent filed a petition before the respondent no. 2 for correction of the revenue records in terms of the final decree for partition. Notices were issued to the private parties by the respondent no. 2 by a notice dated June 7, 2017. The petitioner challenged such notice by a writ petition. Such writ petition was disposed of directing the respondent no. 2 to act in accordance with law. The respondent no. 2 concluded the proceeding with the direction upon the respondent no. 3 to deal with the matter under Regulation 155 of the Regulations of 1966. The respondent no. 3 found that, the power under Regulation 155 of the Regulations of 1966 was exhausted since there was a final decree for partition passed by the Civil Court. After recording a finding that since the suit property stood partitioned by metes and bounds by a final decree of Civil Court, the respondent no. 3 directed the respondent no. 4 to take necessary action in terms of the Regulations of 1966 and pass an appropriate order, if required. Consequent upon such direction, the respondent no. 4 has passed the impugned order dated June 13, 2018.

So far as the contention of the petitioner that, the petitioner did not have notice of the proceeding is concerned, the same is without any basis. The impugned order dated May 24, 2018 passed by the respondent no. 2 establishes that, despite notices being issued, the petitioner chose to remain absent. The records of the proceedings had between the parties before the respondent nos. 3 and 4 establishes that, notices were issued by respondent nos. 3 and 4 on diverse dates to the petitioner. The petitioner had appeared before the respondent no. 3 on some dates. Thereafter, the petitioner chose not to appear before the respondent no. 3. The petitioner therefore cannot feign ignorance of the proceedings before the respondent no. 3. The proceeding before the respondent no. 4 was a continuation of the proceeding before the respondent no. 3 inasmuch as, the respondent no. 3 by the impugned order dated May 24, 2018 had directed the respondent no. 4 to act in terms of the final decree passed by the Civil Court in view of the Regulations of 1966.

Learned advocate appearing for the petitioner has relied upon Rule 135 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Rules, 1968 and the Form F appended thereto. According to him, notice of mutation in terms of Rule 135 (3) of the Rules of 1968 was not served upon the petitioner.

Such contention has no basis inasmuch as, the petitioner was present before the respondent no. 3 for some time. Petitioner thereafter chose not to appear before the respondent no. 3. The next step was the impugned order of the respondent no. 4. The impugned order of the respondent no. 4 being in continuation of the proceeding before the respondent no. 3, the question of giving further notice to the petitioner does not arise. In any event, the private parties are bound by the final decree passed by the Civil Court. Nothing has been placed before the Court to suggest that, the respondent nos. 3 and 4 acted beyond the final decree passed by the Civil Court. The respondent nos. 3 and 4 have implemented the final decree passed by the Civil Court. A separate execution proceeding is not necessary to be filed in the Civil Court to make the revenue authorities act in terms of the decree passed by Civil Court particularly when there was no refusal on the part of the revenue authorities in acting in terms of the final decree for partition passed by the Civil Court.

In such circumstance I find no infirmity in the impugned decisions of the respondent nos. 3 and 4 warranting an interference by a Writ Court.

Existence of statutory alternative remedy is not an absolute bar to the maintainability of a petition under Article 226 of the Constitution of India. In the present case, the petitioner has alleged that the respondent nos. 3 and 4 have acted without jurisdiction. On the strength of such an allegation, it cannot be said that, the writ petition is not maintainable. However, the contention of lack of jurisdiction is unfounded as, the Record of Rights have to be amended in order to make the same in consonance with a final decree passed by a Civil Court in terms of the Regulation of 1966. The Revenue authorities have acted in terms of a final decree passed by a Civil Court and under the Regulation of 1966 it cannot be said that, the revenue authorities have acted beyond jurisdiction in doing so.

In view of decision aforesaid, WP No. 133 of 2018 fails and is dismissed without any order as to costs.