M.Ganeshan vs Lieutenant Governor And Others

I.P. Mukerji, J

Both Mr.Jayapal and Mr.Rao have made very elaborate submissions. The essential facts which emerge from these submissions are these.

The father of the writ petitioner was M.Meyyappan. Admittedly, he was an encroacher of land bearing survey No.1694/1 at Quarry Area, Phoenix Bay village.

The question is from when he was such encroacher?

There is on record his letter dated 10th October, 1960 to the Deputy Commissioner, Andaman and Nicobar Islands, Port Blair asking him to consider a previous representation dated 17th May, 1956 followed by a reminder dated 21st September, 1959 for regularisation of his encroachment by allotment of land in his favour. He said in his letter that he started encroaching it from 1951.

The Chief Commissioner, Andaman and Nicobar Islands on 1st April, 1968 published the Rules in exercise of his powers under sub-section (1) of section 210 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations, 1966. Rule 105 is in the following terms:-

"105. (1) For the purpose of reporting encroachments referred in clause (3) of the Rule 91, the Patwari shall maintain a register of encroachment in the From 'E'.

(2) He shall prepare a sketch of each encroachment detected by him in duplicate according to scale and after retaining a copy of it, shall handover the other with his report to the Revenue Inspector.

Mr.Jayapal submits which could not be controverted by Mr.Rao that under the 1966 Regulations encroachers whose encroachment was reported under the aforesaid Rules were allotted encroached land as a freehold absolutely by the government.

M.Meyyappan died on 4th January, 1994.

Therefore, a valuable right under the said Regulations and the rules framed thereunder, if proved had accrued to him during his lifetime and was inherited by the writ petitioner, claiming to be his only heir.

I make it clear that when I say 'valuable right' in this order it only means 'valuable right' if proved.

Now, in Annexure P-4 at page 33 of the petition I find an extract from the register of encroachment of government land under Rule 105(1) prepared in 1994 that the writ petitioner's father's probable date of encroachment was 28th December, 1957.

On this basis, Mr.Jayapal submits that the Commissioner-cum-Secretary(Revenue) was in error in making the impugned decision dated 27th January, 2014 as he neither considered the said register of encroachment nor the letter of M.Meyyappan dated 10th October, 1960.

Mr.Rao submits that the writ petitioner had given up his rights under the 1966 Regulations and availed of the 1978 Scheme by which he was granted an area of 200 square meters on the basis of Pre-1978 encroachment.

Mr.Jayapal submits that on fear of eviction this concession was made by his client to retain the possession of his land or part of it.

In my opinion, there is nothing on record to show that the writ petitioner had given up his rights under the 1966 Regulations. To waive such a right some more substantial action on his part was required. My view is that he availed of the pre-1978 encroachment regularisation policy so as to protect his possession, for the time being. This valuable right is retained by the writ petitioner.

I accept Mr.Jayapal's submission.

In those circumstances, the impugned order of the Commissioner-cum-Secretary(Revenue) dated 27th January, 2014 is set aside. It follows that the order dated 8th March, 2011 of the Deputy Commissioner, South Andaman is also set aside.

Much time has been consumed in the above process of determining the encroachment status of the writ petitioner and his father, I am not inclined to send the matter to the Deputy Commissioner.

The Commissioner-cum-Secretary(Revenue) is directed to pass a fresh order with reasons taking into account inter alia the above two documents and following the observations made in this order upon hearing the writ petitioner and all other interested parties within three months of communication of this order.

For a period of three months or till the date of communication of the decision if it is earlier than three months and a further period of two months to enable the petitioner to avail of legal remedies in case the decision is against him, status quo regarding possession of the petitioner shall be strictly maintained by the administration.

This writ application is accordingly disposed of.