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Judgment
Nadira Patherya, J.—By this Writ Petition, the petitioners seek to set aside the order dated 7th October, 2015/8th October, 2015 so also the order dated 9th October, 2015.
The case of the petitioners is that an auction notice was issued by the Tehsildar, South Andaman in 1973 for sale of immovable property mentioned therein. In the said auction one Avtar Singh was the highest bidder and sale was confirmed in his favour. A sale certificate was also issued under Section 122(b) of the 1966 Regulation in respect of Survey No. 5, Flat Bay, South Andaman. A notice was issued to him on 20th February, 1992 by which he was asked to stop construction of jetty on government land and show cause why he should not remove the illegal construction. The said proceeding was contested and an order was passed on 25th February, 1992 directing the predecessor-in-interest of the petitioners to remove the illegal occupation from the Government land and to restore the land to its original position. Thereafter, on 20th January, 1995 a notice was issued to the predecessor-in-interest of the petitioners seeking an explanation why the land should not be forfeited to the Government. The said notice was challenged in C.O./C.R. No. 151(W) of 1995 wherein an order was passed quashing the order dated 20th January, 1995. No appeal was filed from the said order. In the said order it was held that the interest of Chouldari Coconut Farming Cooperative Society (Cooperative Society) in the land had been sold and considerable sums realized from Avtar Singh. The respondents were also given liberty to initiate fresh proceeding and by notice dated 1st May, 2001 the petitioners were called upon to appear in person with all documentary evidence in support of their claim over the land. The said notice of 2001 was again challenged and set aside by order dated 24th September, 2001 whereby the notice dated 1st May, 2001 was quashed. An appeal though filed by the authorities was disposed of by directing the Administration to take steps for acquisition of the said land in case of any public purpose. No acquisition proceeding was initiated, instead in 2007, a notice was issued and an order was passed by the Deputy Commissioner, South Andaman treating the said land of the petitioners as "grant" and calling upon the petitioners or their predecessor-in-interest to hand over vacant possession of the subject land to the Tehsildar, Ferrargunj within the time specified in the said order. The said order dated 22nd February, 2007 was challenged in W.P. 76 of 2007 and an order was passed giving liberty to the petitioners to file an appeal against the order dated 22nd February, 2007 within three months. Being aggrieved by the said order an appeal was filed and the same was disposed of by order dated 12th June, 2009 by remanding the writ petition for adjudication by the Trial Court. The said writ petition was heard and disposed of by order dated 6th February, 2014 whereby the resumption order of 22nd February, 2007 was set aside and an opportunity given to the Administration to initiate proceedings within eighteen months relying on cogent material in support thereof. Copies of the documents and materials were directed to be furnished to the petitioners. Based on the said Order on 13th March, 2015 a notice was issued directing the petitioners herein to appear before the Deputy Commissioner with all relevant documents and records. The said direction was based on the directions contained in the order dated 06th February, 2014. No cogent material or supporting document was mentioned in the said notice nor furnished to the petitioners. It was only on 15th June, 2015 that certain documents were sought to be relied on by the Administration. After hearing the parties an order was passed on 08th October, 2015 wherein it was held that the Island had been given to one Venkat Giri as a "grant" under Section 4(1)(a) of the 1926 Regulations applicable to the Andaman & Nicobar Islands. The process had been initiated on the basis of a question raised in Parliament regarding illegal sale of Flat Bay Island in 1994. This had resulted in Revenue proceeding being initiated and show cause issued. As the entries recorded were incorrect and contrary to the Regulation steps were taken to forfeit the said lands of the petitioners. The Deputy Commissioner by the said order held that possession of only the coconut plantation was given to Avtar Singh, the successful auction purchaser pursuant to Auction notice dated 5.3.1973. Mutation of the land in favour of Avtar Singh, the purchaser had been effected in connivance with the Tehsildar and other field staff. Land given as grant could not be converted as occupancy right. As the said land was given as grant a policy decision had been taken not to give fresh grant on expiry of the period in public interest as availability of land in the Islands was less. As Avtar Singh''s interest was of only a grantee in the coconut plantation alone the petitioners too could not have a higher interest than that enjoyed by Avtar Singh. By the said order the petitioners were called upon to hand over possession of the said land and in fact the possession has also been taken. The said order dated 08th October, 2015 is bad as the adjudicating authority failed to consider that in the order dated 24th September, 2001, there was a specific finding that the land was not an unsurveyed land and in appeal the said finding had not been set aside. In the Affidavit-in-opposition filed by the Administration in CO/C.R. 151(W) of 1995 it was categorically stated in Para 3(d) that the said land was allotted to the Cooperative Society under Section 4(1)(b) of the 1926 Regulation. This also finds mention in the Affidavit filed to the instant proceeding but the adjudicating authority has treated the subject land as grant under Section 4(1)(a) of the 1926 Regulation. No cogent reason or material finds mention in the notice dated 13th March, 2015 which has been issued pursuant to the order dated 06th February, 2014. The Administration sought to rely on certain documents at hearing held on 15th June, 2015. The said documents did not find mention in the notice dated 13th March, 2015. The said documents are not cogent materials and cannot form the basis of the notice dated 13th March, 2015. The list of leased plantation relied on by the Administration is not an authenticated document. The inspection report of the coconut plantation of 1973 sought to be relied has been issued by the Director of Agriculture and cannot be relied on as the Agriculture Department was not to consider the title of Avtar Singh. The settlement records referred to and relied on is a Sarkari in the name of the legal heirs and representatives of Venkat Giri. There is no mention of survey 5 in the Sarkari document. Although the name of Venkat Giri has been expunged and on resumption the land mentioned therein made over to the Horticultural department but in the absence of identification of land the said document cannot be termed as a cogent material. In the documents of 1945 and 1946 Venkat Giri''s name finds mention in the list of coconut plantations. Avtar Singh did not purchase the interest of Venkat Giri, therefore the said documents are of no relevance and do not constitute cogent materials. On 27th July, 1964 an order was passed by the Deputy Commissioner wherefrom it will appear that the coconut plantation was allotted to the Cooperative Society namely Chouldari Cooperative Society under Section 4(1)(b) of the 1926 Regulations. This has been changed by the Adjudicating Authority to Section 4(1)(a) of the 1926 Regulations. In fact, the sale deed was registered upon enquiry by the authorities and it is only after 1994 that the subject land was sought to be treated as a grant. By effecting sale of the immovable property as mentioned in the sale notice, it was the subject land with the coconut plantation which was sold to Avtar Singh and sold by him to the petitioners'' predecessors-in-interest. In W.P. 76 of 2014 no materials were found and therefore the Administration was directed to resume the land, if at all, upon cogent materials. Such cogent material has not surfaced and does not find mention in the notice dated 13th March, 2015. The materials sought to be relied on also do not evidence grant to Avtar Singh. Therefore, the order dated 8th October, 2015 be set aside.
Counsel for the State respondents submits that the subject Island is comprised in Survey No. 5 and is situated near Chouldari in South Andaman. The said Survey No. 5 was given to one Venkat Giri. In 1961 the said Survey No. 5 was resumed from Venkat Giri and given to the Coconut Development Department. In 1964 the said Survey was given to Chouldari Coconut Farming Cooperative Society which defaulted in payment of land revenue of Rs. 2685.87 and it is for recovery of the said sum that in 1973 the coconut plantation excluding the land was put up for sale. The said coconut plantation was auctioned under Section 122(c) of the 1966 Regulation and the highest bidder was one Avtar Singh for the sum of Rs. 8550/-.
The sale certificate was issued under Section 122(b) of the 1966 Regulation and it is unbelievable that for the meagre sum of Rs. 8550/- the land along with the coconut plantation comprised in Survey No. 5 would have been sold to Avtar Singh. Therefore, Avtar Singh was a grantee in respect of the coconut plantation with no title in the land as the cooperative society was the grantee only in respect of the coconut plantation. That Avtar Singh was not the owner of the land will appear from the documents mentioned at hearing dated 15th June, 2015 and relied on at hearing before the adjudicating authority. From the said documents it will appear that the coconut plantations were let out on lease to Avtar Singh as a lessee and not as an owner. In fact, since the time of Venkat Giri it was only the coconut plantation which had been leased out. As the lessee Avtar Singh was given the property on lease, and it was only the lease hold interest in the coconut plantation which devolved on the predecessor-in-interest of the petitioners and the petitioners thereafter. In 1963, the name of Venkat Giri was expunged and the land was resumed. Venkat Giri had sought for exemption from payment of revenue which was rejected in 1958. In fact, Survey No. 5 had never been surveyed and it was because of the question raised in Parliament that the wrong entries made in the record-of-right came to light. In the record-of-right Avtar Singh had been shown as an occupancy holder and if he was so no permission would be needed by him to transfer his interest. Avtar Singh was a non-occupancy holder and in the records in connivance with the Tehsildar and other Revenue Officers the non-occupancy holding was converted to occupancy holding in 1985. Therefore, Avtar Singh was not entitled to transfer his interest, if any. As Venkat Giri enjoyed grant in the subject land, grant was given to the Co-operative Society and it was grant which devolved on Avtar Singh and the Vendee viz. the predecessor-in-interest of the petitioners. As it was grant the Order dated 7.10.15/08.10.15 and letter of possession are justified.
Counsel for the petitioners in reply submits that sale of coconut plantation dehors the land was not the case made out by the Deputy Commissioner. From the affidavit filed it will appear that the Cooperative Society defaulted in payment of the land revenue and the land was attached and put to public auction. There is no mention of any grant and it has been specifically pleaded in the Affidavit-in-opposition filed by the Administration that the un-surveyed land of Survey No. 5 was allotted to the Cooperative Society under Section 4(1)(b) of the 1926 Regulation. This is contrary to the order passed by the Deputy Commissioner wherein there is a mention of a grant made to the Cooperative Society under Section 4(1)(a) of the 1926 Regulation. One of the documents relied on by the Administration is the Settlement Record viz. the Sarkari. In the said document there is no mention of the survey No. All that finds mention is the interest of Venkat Giri which was mutated in favour of his sons and the said document is not connected with the subject land. The pleadings in respect of the said document is also restricted to four Islands which are totally unconnected with Survey No. 5. In view of the order passed by Amitava Lala, J. on 24th September, 2001 Survey No. 5 cannot be treated as un-surveyed land. Therefore, as sale was effected of the subject land in favour of Avtar Singh the plea of grant cannot be taken by the Administration, and reliefs be granted as sought.
Having considered the submission of the parties the only issue that needs to be considered is whether the interest of the writ petitioners is a grant under Section 4(1)(a) of the 1926 Regulation or right granted under Section 4(1)(b) of the 1926 Regulation, and restricted to only the coconut plantation or included the land too. To consider the said issue the interest of Avtar Singh will have to be considered. There is no doubt that Venkat Giri owned coconut plantation as he sought exemption from payment of revenue in respect of the coconut plantation and an order was passed refusing such exemption on 8th July, 1961. The settlement record relied on is a Sarkari wherefrom resumption of Venkat Giri''s land is evident vide order dated 6th September, 1961. On resumption the said land was made over to the Horticultural Department and the name of Venkat Giri was expunged. In the said document the name of the sons of Venkat Giri was brought on record in respect of the land mentioned in the Sarkari but that the said Sarkari was in respect of Survey No. 5 cannot be found, from the said document. In any event Avtar Singh did not derive title from Venkat Giri and the agreement between Venkat Giri and the Administration is also not known. The subject land was possessed by Chouldari Cooperative Coconut Farming Society (Cooperative Society) and this finds mention in the sale notice dated 5th March, 1973. For convenience sake the said proclamation of sale of immovable property is set out hereunder:--
"PROCLAMATION OF SALE OF IMMOVABLE PROPERTY
(Under Section 122(c) of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966)
Whereas the immovable property described below has been attached for the recovery of Rs. 2659.87 on account of land Revenue due by Chouldhari Co-operative Coconut Farming Society, Chouldari, Resident of village ....Tehsil, South Andaman District, A & N Islands plus Rs. 1/- on account of process fee....
Proclamation is hereby made that unless the total amount aforesaid be paid before the day herein, fixed for the sale, the said property shall be sold by public auction at Port Blair the day of 24th March, 1973 at or about 10 O''clock.
The sale extents only to the right, title and interest of the said defaulter in the said property:--
Dated: 5/3/1973.
Tehsildar South Andaman."
It was for recovery of sums on account of arrear land revenue that the immovable property mentioned in the sale notice was put up for sale by public auction and in such auction Avtar Singh was the highest bidder for the sum of Rs. 8550/-. It was specifically stated in the sale notice that the sale was limited to the right, title and interest of the defaulter in the said property. During the time that Avtar Singh was in possession of the subject land, his right, title and interest therein was not disputed. In fact, in 1986 when the sale deed was executed by Avtar Singh in favour of the predecessor-in-interest of the petitioners herein the status of the predecessor-in-interest of the petitioners was also not disputed. It is only in 1994 when a question was raised in Parliament that a show cause notice was issued on 20th January, 1995 under Section 89 of the 1966 Regulation.
The said show cause notice dated 20th January, 1995 was challenged in CO/CR No. 151(W) of 1995. An order was passed on 15/16th September, 1996 setting aside the show cause notice as Regulation 89 of the 1966 Regulation did not authorize forfeiture of any land and did not empower the Revenue Officer to decide questions of title nor could the sale be set aside. No appeal was filed therefrom. Instead a notice dated 1st May, 2001 was issued by the Deputy Commissioner calling upon the predecessor-in-interest of the petitioners or his representative to appear with all documents in support of the petitioners'' claim. The said became subject matter of challenge in W.P. No. 59 of 2001 and an order was passed on 24th September, 2001, wherein there was a finding that it could not be said that Survey No. 5 was un-surveyed land. The said order was challenged in appeal and on 6th February, 2002 the Appeal Court dismissed the appeal with a direction that in case the Administration needed the subject land for public purpose it would be entitled to do so under the provisions of law for acquiring the same. No acquisition proceeding was initiated by the Administration. Instead in February, 2007 a notice was issued calling upon the predecessor-in-interest of the petitioners to hand over vacant possession of the subject land to the Tehsildar as the subject land was a "grant" and the entries were required to be corrected under Section 89 of the 1966 Regulation. The said order of 2007 was challenged in W.P. No. 76 of 2007 which Writ Petition was disposed of by order dated 16th June, 2008 giving liberty to the petitioner to file an appeal against the order of the Deputy Commissioner. An appeal was filed therefrom and the said order was set aside on 12th June, 2009 directing W.P. No. 76 of 2007 to be disposed of on merits. The said Writ Petition was disposed of by order dated 6th February, 2014 and the order dated 22nd February, 2007 was set aside for lack of material that the cooperative society enjoyed a mere grant. The Administration was given liberty to initiate fresh proceedings within the time mentioned therein for resumption of land on cogent material in support thereof. The materials to be relied on were to be made available to the petitioners. It is in view of the said direction contained in order dated 6th February, 2014 that the notice dated 13th March, 2015 was passed. The Administration while issuing the said notice did not mention therein the cogent materials on which it was relying for purposes of resuming the subject land. In fact, all that it did was to quote the relevant paragraphs from the order dated 6th February, 2014 and by virtue thereof called upon the petitioners to produce relevant documents and records. It was only at hearing held on 15th June, 2015 that the records on which the Administration was desirous of relying were produced. These documents have been accepted and form the basis of the order dated 8th October, 2015.
The documents relied on by the Administration which has been accepted by the Deputy Commissioner are as follows:--
"Exhibit-A: The list of leased plantation from which it is appeared that the Flat Bay island was a leased property in favour of Chouldari Coconut Plantation, thereafter it is given to the Agriculture Department and subsequently, to Shri Avtar Singh.
Exhibit-B: The Inspection Report of the Agriculture Department when the property was under the lease of Shri Avtar Singh from the said report it is clear that the property of Flat Bay was lease out property of Shri Avtar Singh.
Exhibit-C: The copy of the settlement record from which it is cleared that the land of Flat Bay is known as Sarkari lease out land.
Exhibit-D: The inspection report of Agriculture Department from which it is clear that the property was a lease out property from the file of 1945 maintain by the Archives Section of the Administration.
Exhibit-E. The statement - A wherein at Sl. No. 18 is mention in the name of Shri Venkat Giri in respect of the Flat Bay island of the lease property.
Exhibit-F: The documents relating to file of 1946 maintain by the Archives Section of the Administration also reflect at Sl. No. 41 that Flat Bay mention in the name of Shri Venkat Giri.
Exhibit-G: The documents of statement-A in file No. 18.06.1945 at Sl. No. 13 in the name of Shri Venkat Giri plantation at Flat Bay recorded.
Exhibit-H: The proclamation issued by the Tehsildar in respect of the Flat Bay property of Chouldari Coconut Plantation in the said notice it is also mentioned property was lease out property."
The said documents are of no relevance for the following reasons:--
"Exhibit-A: The list of leased plantation from which it is appeared that the Flat Bay island was a leased property in favour of Chouldari Coconut Plantation, thereafter it is given to the Agriculture Department and subsequently, to Shri Avtar Singh.
The said list includes the name of the cooperative society at Sl. No. 2 and the coconut plantation held by the legal heirs and representatives of Venkat Giri at Sl. No. 16. The settlement record relied on by the Administration namely the Sarkari shows that the name of Venkat Giri was expunged and in its place and stead the names of his sons Srikrishna and Ramkrishna were brought on record. The said land was resumed in 1961. Therefore, if the resumption in 1961 is correct the name at Sl. No. 16 should not find mention in the said list of leased plantation as according to the Administration the coconut plantation was resumed from Venkat Giri and given to the Coconut Development Corporation and thereafter to the Cooperative Society. In fact, the context in which the said list was prepared it also not known. No one has also taken responsibility for the said list prepared being true and correct. Therefore the said list cannot form the basis of the order under challenge.
Exhibit-B: The Inspection Report of the Agriculture Department when the property was under the lease of Shri Avtar Singh from the said report it is clear that the property of Flat Bay was lease out property of Shri Avtar Singh.
The inspection report of 1973 has been prepared by the Agriculture Department which was in no way determining the title of Avtar Singh in respect of the said land. At best the said document can be regarded as a survey of the coconut plantations and nothing else.
Exhibit-C: The copy of the settlement record from which it is cleared that the land of Flat Bay is known as Sarkari lease out land.
The sarkari document relied on has been admitted by the Administration in its affidavit filed through Gopa Kumar on 8th December, 2015 did not cover survey No. 5. For purposes of convenience the relevant paragraph is set out hereunder:--
"3.... a) ....
b). There are four islands bearing survey No. 1 area 0.23 hects. Survey No. 2 area 8.24 hects. Survey No. 3 area 2.68 hect. and survey No. 4, area 2.93 hects. which form an Agricultural holding situated at Flat bay village. The said holding was allotted to one Venket Giri (since deceased), as non-occupancy holding as per the descents of late Venket Giri acquired the said holding and transferred their interest in the holding to M/s. Imperial Granites Pvt. Ltd., Madras.
Copy of Khasra Register pertaining to the entries and copy of the map of village showing the location of the said holding is attached herewith for perusal of this Hon''ble Court and marked with Annexure R-1(colly.)"
R1 is the Sarkari document relied on by the Administration which is in no way connected with the subject land. The said Sarkari is of Venkat Giri and not of the Co-operative Society whose right, title and interest devolved on Avtar Singh and the petitioners. In the absence of documents (Sarkari) of the Co-operative Society, the settlement documents (Sarkari) of Venkat Giri will not aid the Administration nor is it a cogent material.
Exhibit-D: The inspection report of Agriculture Department from which it is clear that the property was a lease out property from the file of 1945 maintain by the Archives Section of the Administration.
The document of 1945 is an inspection Report of the Agriculture Department and shows Venkat Giri as a lessee. But the right, title and interest which devolved on Avtar Singh was not from Venkat Giri instead it devolved from the Cooperative Society. The interest acquired by the Cooperative Society also did not devolve from Venkat Giri as it has been mentioned in the order dated 27th July, 1964 by the then Deputy Commissioner, A & N Islands that the coconut plantations had been allotted to the Co-operative Society. Therefore, the reliance placed on documents of Venkat Giri will not come to the aid of the Administration. No document of the Cooperative Society has been produced by the Administration. In fact, the sale proclamation has been issued in respect of the immovable property of the Cooperative Society and the immovable property of the Cooperative Society was comprised in the coconut plantation covering approx. 10 hectares in area. The coconut plantation comprised of trees attached to earth and therefore includes the land on which it stands and it is by virtue thereof that the Cooperative Society had a right, title and interest in the land so also the coconut plantation. The coconut plantation cannot be separated from the land and the argument of the Administration that it was only the coconut plantation in which Avtar Singh derived right, title and interest cannot be accepted. On 27th July, 1964 an order was passed by the Deputy Commissioner, Port Blair in Revenue Case No. 150 of 1964, under Section 4(1)(b) of the 1926 Regulations allotting coconut plantations to the Co-operative Society. This allotment was also understood by the Administration to be correct as in the affidavits filed it is specifically stated that the allotment to the Cooperative Society was under Section 4(1)(b) of the 1926 Regulation. Therefore, if the allotment to the Cooperative Society was under Section 4(1)(b) of the 1926 Regulation, Section 4(1)(a) which relates to grant cannot be made applicable to the subject land and if not a grant the question of expiry will not arise.
Exhibit-E. The statement - A wherein at Sl. No. 18 is mention in the name of Shri Venkat Giri in respect of the Flat Bay island of the lease property.
Exhibit-F: The documents relating to file of 1946 maintain by the Archives Section of the Administration also reflect at Sl. No. 41 that Flat Bay mention in the name of Shri Venkat Giri.
Exhibit-G: The documents of statement-A in file No. 18.06.1945 at Sl. No. 13 in the name of Shri Venkat Giri plantation at Flat Bay recorded.
The name of Venkat Giri finds mention as the planter or owner of the coconut plantation but the Co-operative Society did not derive its title from Venkat Giri. It also appears from the order dated 27th July, 1964 that the allotment to the Co-operative Society was under S. 4(1)(b) of the 1926 Regulations, therefore, the interest of Venkat Giri differed from that of the Co-operative Society.
Exhibit-H: The proclamation issued by the Tehsildar in respect of the Flat Bay property of Chouldari Coconut Plantation in the said notice it is also mentioned property was lease out property."
By the sale proclamation it is the interest of the Co-operative Society under S. 4(1)(b) of the 1926 Act that devolved on the auction purchaser, Avtar Singh.
The Administration through its affidavit affirmed in CO/CR 151(W) of 1995 has accepted that the "unsurveyed land/island with coconut plantation was allotted to the Co-operative Society under s. 4(1)(b) of the 1926 Regulation.
In the affidavit affirmed by the Administration to the instant writ petition too this finds mention. In fact paragraph 3(f) reads as follows:--
"3(f). The said Chouldari Cooperative Society became defaulter in paying the Government dues and the said land was purported to be attached and put to public auction to realise the Government dues by the Tehsildar, South Andaman under the provisions of section 122 of the Regulation. The said purported attached which was made for realization of Government dues was totally illegal in as much as the said society had no right, title and interest over the land at any point of time and that the society had only oral licence to enjoy the usufructs thereof. Such being the position, the entire allotment proceeding is vitiated with illegality which rendered the auction sale illegal and void ab initio. The said sale could not and did not convey any title to the petitioner."
On a proper reading of the said paragraph, the Administration while admitting that the land was put up for auction is seeking to set-aside the said attachment and the public notice which it cannot do in these proceedings.
The case of grant pursued by the Administration cannot be accepted in view of the order dated 27th July, 1964 in Revenue Case No. 150 of 1964. For convenience sake the said order is set out herein below:--
"Copy of order No. Rev. Case No. 150 of 64 dated the 27th July, 1964 from the Deputy Commissioner, Andaman and Nicobar Islands, Port Blair.
Under section 4(1)(b) of the Andaman and Nicobar Islands (Land Tenure) Regulation 1926 the following coconut plantations are allotted to the Cooperative Societies mentioned below on usual terms and conditions under the Andaman and Nicobar Islands (Land Tenure) Regulation 1926 and the rules framed thereunder.
Formal licence will be issued after the survey is completed by the Agent Commissioner (Settlement) in respect of Flat Bay Coconut Plantation."
The entries made in the Revenue records remain unaltered. No step has been taken either to correct the same. For all the reasons the orders dated 7th/8th October, 2015 is set-aside, so also 9th October, 2015. Possession accordingly be handed to the petitioners by the Administration of the subject land within two weeks from the date of receipt of this order.
This application is accordingly disposed of.