Mohammad Ali vs Andaman And Nicobar Administration And Others

Abhijit Gangopadhyay, J

The origin of this writ application is claim of respondent Nos. 5 and 6 for earmarking a portion of an area of land which is allegedly in the possession of the writ petitioner. In respect of this dispute between the writ petitioner and the respondents several writ applications and appeals therefrom were filed from time to time. Now, the dispute has crystallized in the order of the Secretary (Revenue), hereinafter referred to as the Secretary, dated 31st July, 2018. This order has been passed by the Secretary in compliance with the direction of the High Court dated 4th September, 2017 passed in WP No. 322 of 2017.

While deciding the matter in compliance of the aforesaid order of the High Court, the background of the matter has been narrated in the first few paragraphs (from paragraphs 2 to 14) of the order of the Secretary dated 31st July, 2018 (hereinafter referred to as the impugned order).

After hearing the parties and considering the written argument filed before the Secretary and after considering the records of the relevant plots of land the Secretary has inter alia, passed the following order.

"21. In view of the above facts, material on records, written argument and merit of the case;

(a) Mutation order as mentioned at para 17(v) are set aside.

(b) The order dated 13.07.2015 of the Deputy Commissioner, South Andaman is hereby set aside with the direction to take immediate steps to correct the area according to their actual entitlement and in the interest of natural justice to provide right of way to all stakeholders by way of set apart of land under section 198(i) of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 with a speaking order and clear demarcation of right of way.

(c) The Deputy Commissioner, South Andaman shall also take appropriate action against the officials found indulged in falsification and unlawful mutation of land records leading to litigation."

Mutation order, referred as in paragraph 17(v) of the order of the Secretary is as follows:-

"(v) From the above para it is clear that Government has lost 1847 Sq.mtrs. of land by way of illegally gained by wrong mutation vide MR Sl.No. 79 dated 10.11.78, 682 Sq.mtrs., MR Sl.No. 3 dated 13.12.76, 605 Sq.mtrs. and MR Sl.No. 78 dated 10.11.78, 520 Sq.mtrs. in the name of Shri Mohammed Ali, Anwari Parker (now Farida Hassan and others). Hence the mutation orders as mentioned above merits to be set aside."

The petitioner has assailed the impugned order by filing the writ application on several grounds. While arguing the matter the petitioner has pressed some of the grounds which has been mentioned in his written notes of argument as points of argument to challenge the order passed by the Secretary.

The first point of challenge is that the Secretary exceeded his jurisdiction by shifting to a different issue.

The Secretary was hearing the matter at the direction of the High Court, dated 04th September, 2017 as the Appellate Authority. By the said order of this Court the matter was remanded back to the Appellate Authority being the Secretary This Appellate Authority was actually hearing an appeal filed by the respondent Nos. 5 and 6 herein against the order passed by the Deputy Commissioner on 01st July, 2016.

According to Section 17 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 (hereinafter referred to as the said Regulation) every Revenue Officer while exercising any power to enquire into or decide any question arising for determination between the Government and any person or between parties to any proceedings shall be a revenue court. Thus the Deputy Commissioner acted as a revenue court while passing the order dated 01st July, 2016 as the dispute before him was between the private respondent Nos. 5 and 6 herein and the writ petitioner herein. That the Deputy Commissioner is a Revenue Officer is found from Section 3(b) of the said Regulation. The original order passed by the Deputy Commissioner dated 01st July, 2016 was to be appealed against before the Chief Commissioner as provided under Section 28(d) of the said Regulation.

By a notification dated 13th October, 1978, the Chief Commissioner delegated the Secretary, in charge of the Revenue Department of the Andaman and Nicobar Administration, the power to hear appeal. Such notification has been placed on record by the respondent Nos. 1, 2, 3 & 4 through their written notes of argument. The notification is set out herein below:-

"ANDAMAN AND NICOBAR ADMINISTRATION

Chief Commissioner's Secretariat

***

Port Blair, the 13th October, 1978

NOTIFICATION

No.155/F.No.39-83/78-Judl.- In supersession of notification No.76/75/62-1/75-Judl. Dated 20.6.1975 and in exercise of the powers conferred by section 208 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 (hereinafter referred to as the said Regulation), the Chief Commissioner hereby delegates to the Secretary in charge of Revenue Department of the Andaman and Nicobar Administration, an officer subordinate to him, the following powers conferred on the Chief Commissioner under the said Regulation namely:-

(a) Power of hearing appeal against any original order or the order reviewing the original order passed under the said Regulation or the rules made thereunder by a Deputy Commissioner or a Settlement Officer during the currency of the term of any settlement, conferred on the Chief Commissioner under clause (d) of sub-section (1) of section 28 of the said Regulation;

(b) Power of hearing second appeal against any order passed in first appeal or the order reviewing such order by a Sub Divisional Officer, a Deputy Commissioner or the Settlement Commissioner conferred on the Chief Commissioner under clause (i) of sub-section (2) of section 28 of the said regulation;

(c) Power of revision over the order of the Revenue Officer conferred on the Chief Commissioner under section 33 of the said Regulation.

The Chief Commissioner further directs that is from the date of this notification all the revenue appeals, second appeals and revision cases under this Regulation pending in Judicial Secretary's file shall be transferred to the file of the Secretary in charge of the Revenue Department for disposal.

By order,

Sd/-

( B.Goswami )

Assistant Secretary (Genl.)

No.39-83/78-Judl. Port Blair, the 13th Oct., 1978"

Thus, the Secretary has the power and jurisdiction to hear the appeal.

By Section 89 of the said Regulation power has been given to any Revenue Officer for correction of wrong or incorrect entry in land records when such wrong entry was made by an officer subordinate to such Revenue Officer. Therefore the Deputy Commissioner as he was acting as a Presiding Officer of a revenue court while hearing the application, filed by the respondent Nos. 5 and 6 for a passage to their plots of land, had the power under Section 89 of the said Regulation to correct wrong entry in the land records if such wrong entry was found or detected by him. But the Deputy Commissioner did not approach the issue from the view point of recording in land records.

In the appeal the Secretary approached the matter by delving deeper into the origin of the dispute by considering the land records.

It is meaningless to suggest that while hearing the appeal by approaching the issue from the view point of land records the Secretary has exceeded his jurisdiction. It is wholly meritless further to argue that the first court, had the power under Section 89 of the said Regulation to correct the record if any incorrect entry was found but his superior authority being the Appellate Authority (i.e. the Secretary) did not have the power to correct the land records. It is inconceivable and absurd that an Appellate Authority has lesser power than the forum below it. The reverse is true. An Appellate Authority always has more power than the forum below it and has all powers of the forum below subject to the statutory provision which creates right to appeal. In this regard, the provision laid down in Rule 33 of Order 41 of Code of Civil Procedure is to be kept in mind to know the policy of law as to power of Court of appeal and here the Appellate Authority being the Secretary is not devoid of such power. Nothing has been shown to this Court that the Appellate Authority has been given lesser power, under the said Regulation, than the revenue court below it. I hold that the Secretary approached the whole issue correctly without exceeding his jurisdiction and found out the real state of affairs, as is found in the land records, in respect of the relevant plots of land. By perusing the land records, in his order, the Secretary has elaborately discussed how land record was falsified by one Shri. Amar Nath, Patwari of Haddo village. By recoding sufficient reason, which appears from the impugned order, it has been shown how the petitioner is enjoying fruits of falsification of land records and the Secretary has rightly directed the Deputy Commissioner to provide passage to the respondents No. 5 and 6 from the land which was found excess to the share of the petitioner.

Therefore the objection of the petitioner against the Secretary's order dated 31st July, 2018 as to exceeding jurisdiction does not have any merit.

The second contention of the petitioner as to the impugned order is that the Secretary never informed in any manner to the petitioner about his intention to adjudicate issue in respect of the land record and thus no opportunity of hearing was given to the writ petitioner to place all the documents before the Secretary.

Such contention is also devoid of any merit.

When it is a dispute as to plots of land and its area as was raised by the respondent Nos. 5 and 6 and when the dispute had passed through different authorities in the adjudicatory process including the High Court, the first facts which was required to be seen by the Deputy Commissioner, in which he failed, was the entry in the land records.

If the petitioner has failed to understand the conspectus of the whole issue, the responsibility of consequences of such failure is of the writ petitioner only and his own failure to understand his own responsibility cannot be shown as not giving opportunity of hearing to him by the Secretary. Even, if this objection of the petitioner is considered, it is not at all understood what are the records the petitioner could have produced before the Secretary. Even, in this writ application the petitioner has not produced at any stage any records/documents to show that the Secretary's finding from the land records are incorrect and without any basis.

Further, the petitioner has objected to the action of the Secretary showing Section 113 of the said Regulation contending that it is the Civil Court only which has jurisdiction to decide the issue of entry in the record-of-rights.

This objection also has no merit.

Section 113 of the said Regulation has been completely misread by the petitioner. According to Section 113 of the said Regulation all entries in the records of rights prepared in accordance with the provision of chapter X of the said Regulation shall be presumed to be correct until the contrary is proved etc. Therefore, when the contrary is found from the records of the relevant plots of land and ipso facto proved from such documents and when the entry in the land records have been reflected in the impugned order, the entries in the record-of-rights of the petitioner cannot be presumed to be correct. After the impugned order of the Secretary is passed, wherein from the records of the concerned department the contrary has been proved no dispute has been raised by the petitioner for adjudication of his rights by a Civil Court having jurisdiction. Instead, the petitioner has moved writ court and now the writ court is in the process of deciding the matter and thus the petitioner has exercised his choice between two different and co-existing remedies - one is approaching the Civil Court and the other is approaching the writ court - thereby, the taken one excludes and bars the approach to the other remedy - the petitioner is debarred forever to approach the Civil Court so far as the entries in the records-of-rights are concerned. Section 113 of the said Regulation does not come to the aid of the petitioner, on the contrary, in the present facts and circumstances it goes against the petitioner for his election of remedies.

The petitioner has raised a question as to unoccupied land as was mentioned by the Deputy Commissioner who did not find any unoccupied land, in the relevant plots of land in question.

The petitioner in his writ application has not been able to show any Governmental document wherefrom it can be known that the whole of the area which the petitioner is enjoying was given to him or his predecessor-in-interest by the Government on the strength of which he can claim the whole area of land in question as owned by him. The Secretary's order shows that the petitioner's encroachment of the excess area of land is result of falsification of land records.

The petitioner has also not placed on record before this Court any land record in respect of the area of the plots of land in question from which it can be found that the Secretary has made mistake in holding that some area of land which the petitioner is claiming as owned by him is not a result of falsification of land records but a correct claim on the part of the petitioner. Thus the area of land which was never allotted to the petitioner or his predecessor-in-interest by the concerned Government authority in any manner whatsoever cannot be termed as occupied area.

Land which is not legally occupied has to be treated as unoccupied land and for this reason Section 202 of the said Regulation has been laid down so that the person who is in unauthorized possession of any unoccupied area may be summarily ejected by order of the Tehsildar. Tehsildar is a Revenue Officer as enumerated in Section 3 of the said Regulation. Power has been given to pass such order of summary rejection on the Tehsildar. The contention of the petitioner that for evicting him from the area occupied by him the only method to evict is in Section 202 of the said Regulation has not been followed is baseless. Nothing has been shown by the petitioner that Section 202 has not been followed or is not being followed. The Secretary by his order (i.e. the impugned order) has given certain directions to the Deputy Commissioner and some steps have been taken in this regard by the Deputy Commissioner, as appears from annexure P-15 of the writ application and annexure R-5 of the affidavit-in-opposition filed by the respondent Nos. 1,2,3 and 4. Therefore, the contention of the petitioner in respect of Section 202 has no substance in it.

The next contention of the writ petitioner is that he became the owner of the landed properties by dint of a registered gift deed and by a registered sale deed.

Even if any portion of the illegally and unauthorizedly occupied area of land was gifted and was sold to the petitioner, such gift and sale do not create any right, title and interest of the petitioner over the area of land of which the donor and the vendor could not have been the owner as it has come to light from the order of the Secretary on considering the land records that the area of land was enhanced by falsification of land records. The writ petitioner has not been able to place any paper or document before this Court either to show that the donor and the vendor of the total area of land were actually the authorized owner of such portion of land nor the petitioner has been able to show that such enhanced area of land (which is a result of falsification of Government land records according to the Secretary) is the land legally owned by him. Therefore, whether the petitioner became owner of the landed properties by dint of a registered gift-deed and by a registered sale-deed is of no consequence so far as the unauthorizedly occupied area of the plots of land by the petitioner is concerned. Here, the principle that a person cannot give something to another which is not of that person is applicable. In this case the petitioner has failed to produce any paper and document before this Court to show that the disputed area in question was owned by his predecessor-in-interest.

The petitioner's another contention is that the Secretary ought to have looked into the sale deed of the respondent Nos. 5 and 6 which does not show road on any of the side of the said survey numbers. Such contention is also devoid of any merit as such document like the sale deed would only be considered by the Secretary if it were not found from the land records that as a result of falsification of land records the petitioner has been enjoying some area of land which was never owned by him or by his predecessor-in-interest, and that area of land can be set apart by the Deputy Commissioner for the public purpose like, a road etc.

The petitioner has raised another contention that the Secretary cannot act as a first court. It is not at all understood why such a contention has been raised at all when the Secretary by order of this Court heard and decided the matter as the Appellate Authority which has been stated above. The Secretary has clearly acted as an Appellate Authority.

The Secretary in paragraph 20 of the impugned order has held that the Dr, Mohammed Ali (i.e. the writ petitioner herein) could not establish his contention in any manner that he is having the actual area, according to his entitlement. No such document has also been produced before this Court in the course of hearing of this matter in this Court. The observation made by the Secretary based on land records, has not been countered by producing any other land record or document to show that the Secretary committed mistake and passed the order against the petitioner.

On perusal of the affidavit-in-opposition of the private respondents and of the State authority (respondent Nos. 1,2,3 and 4) I am satisfied that the plots of land of the private respondents being 575/1 and 575/5 are land locked as appears from the map annexed thereto and the petitioner is creating real obstacle to the respondent Nos. 5 and 6 in proper enjoyment of land owned by them and most unfairly has put the said respondents in an extremely inconvenient situation by encroaching the Government land for not giving the said respondents access to their own plots of land. The decision of the Secretary directing the Deputy Commissioner to take steps to correct the area according to the entitlement of the parties and to provide right of way to all stakeholders by way of set apart of land under Section 198 (i) of the said Regulation and clear demarcation of right of way, suffers from no infirmity and no interference is required by this Court, in the order of the Secretary i.e. the impugned order.

The petitioner has failed to counter paragraph 17(i) to paragraph 17(iv) of the impugned order and, in fact, no proper challenge has been thrown to the whole order of the Secretary which is the impugned order.

The parties have not cited any judgment reported or unreported in the course of hearing of this matter.

The State respondents have enclosed order No. 76 of the Tehsildar dated 05th October, 2018 as annexure R-5 in terms of the order of the Deputy Commissioner, South Andaman No. 1488 dated 01st October, 2018. The Deputy Commissioner started compliance of the impugned order.

The petitioner has disclosed as annexure P-15, a notice of the Deputy Commissioner, district of South Andaman dated 04th September, 2018 which has been challenged by the petitioner in the writ application but it is found from annexure R-5 of the State authorities being the respondent Nos. 1,2,3 & 4 that the Deputy Commissioner passed an order on 01st October, 2018 which has been mentioned in the said annexure R-5 being the order No. 76 of the Tehsildar dated 05th October, 2018. By this order of Tehsildar, the respondent of the said proceeding (i.e the writ petitioner herein) was directed to remove the illegal occupation over the recorded land of Government path bearing Sy. No. 575/5/5 and 575/3/2 an area of 209 Sq.mtrs. and an area of 118 Sq.mtrs. of Haddo village on or before 07th October, 2018 failing which the same would be removed by the revenue field staff on 08th October, 2018. The Revenue Inspector, Circle No. 2 and Patwari, Circle No. 5 was directed to execute the order and report compliance.

On the basis of the discussion made above, the order of the Secretary dated 31st July, 2018 is upheld and affirmed and no interference is made with the same by this Court.

As the writ application has been dismissed all interim orders passed by this Court including the order of interim arrangement passed by this Court on 13th December, 2018 are vacated. The authorities concerned has the fullest liberty to remove any obstacle put or constructed on the path to the plots of the land of the respondent Nos. 5 and 6, if the illegal occupation is not removed in the meantime in terms of order No. 76 of the Tehsildar as has been mentioned herein above which is annexure R-5 of the affidavit-in-opposition of the respondent Nos. 1, 2,3 and 4.

The writ application is dismissed with cost of rupees one lakh to be paid to the State Legal Services Authority. The cost is to be paid by the petitioner by six weeks from the date of this order and the receipt showing such payment is to be filed with the Registrar for keeping the same in the record of this case.

With dismissal of writ application AST No. 076 of 2018 and CAN No. 112 of 2018 are disposed of.