Sushil Dhali vs A and N Administration

Satyabrata Sinha, J.—The Petitioner in this application has, inter alia, prayed for the following relief�s:

(a) A writ or writs of or in the nature of mandamus do issue commanding the Respondents and each of them to act in accordance with law and forbearing them from taking any steps or further steps to evict the Petitioner from his subject plot of land situated at Village Ramkrishnapur, Hut Bay, Little Andaman in Survey No. 85 and the land adjacent thereto.

(b) A writ or writs of or in the nature of mandamus do issue calling upon the Respondents and each of them to regularise the subject plot of land situate in Survey No. 85 and land adjacent thereto which is under occupation of your Petitioner.

(c) A writ or writs in the nature of mandamus do issue directing the Respondent Nos. 6, 6A, 7, 8 and 9 to pay compensation and damages to the Petitioner for demolishing his house and destruction of his plantation in the subject plot of land.

Before entering into the controversies involved in this application, the relevant facts which are material for the purpose of disposal of this application may be noticed. By a notification dated April 17, 1983 published in the Andaman & Nicobar Gazette, Little Andaman measuring an area of 282.46 acres was declared to be a reserve forest within South Andaman Reserve. The entire reserved forest area of Little Andaman excluding the area declared as Tribal Reserve and the areas derisive for non-forestry purposes, was granted in lease by an indenture dated November 20, 1987, executed by the Chief Conservator of Forests, for a period of 30 years in favour of Andaman & Nicobar Islands Forest and Plantation Development Corporation Limited (hereinafter for the sake of brevity referred to as ''the Corporation''), which admittedly is a Government of India undertaking, with retrospective effect from April 1, 1977. The relevant clauses of the said indenture are as follows:

The Government hereby agrees to hand over the standing forest in Little Andaman and in North Andaman Forest Division as indicated in the Annexure I.

The lessee will be authorised to take over management and administration of the area covered by this lease including functions of its protection from the date of the order of transfer.

The lessee will have liberty and power to undertake- development and recreation facilities, raising cash crops and plantation crops etc. at their own cost, subject to the general approval of the Government to the effect from time to time.

The lessee shall undertake to supply the requirement of timber to the local wood based industries for which commitment have already been made by the Government and/or as may be directed by the Government from time to time at mutually agreed rates between the lessee and the wood based industries.

The lessee shall have no authority of transferring any demised land to any Government department or Public Undertaking or to any private individual or institution without the prior permission of the Andaman Forest Department. All such requests for transfer of demised land will be referred to the Government in the Forest Department for their decision, which shall be binding on the lessee.

Forestry operations by the lessee in the leased area will be governed on the basis of 75 years conversion period. The area taken up for plantation of each crops and plantation crops shall also be worked by the lessee on the basis of the project report approved by the Government. It is mandatory on the part of the lessee to restock at their own cost and expense the entire harvested area immediately or in the succeeding year with commercially valuable indigenous plant species, by adopting the process of natural regeneration and enrichment plantations. In accordance with the P.I.B. Memo of the project appraisal, the NRA should at no stage be less than 75 % of the annually harvested area.

The area leased out in favour of the Corporation is the forest area in Little Andaman Island excluding the area declared as Tribal Reserve and the areas derisive for non-forestry purposes. It is accepted at the Oar that the Corporation has set up a project known as ''Red Palm Oil Project''. By reason of a notification dated August 16, 1990, the Lt. Governor of Andaman and Nicobar Islands in purported exercise of his power conferred upon him by Sub-section (2) of Section 2 of the Indian Forest Act (hereinafter for the sake of brevity referred to as the ''said Act''), conferred various powers under the said Act, including that of Section 26 upon the Managing Director and Project Manager. However, the said power was to be exercised "within the project area of the Corporation in Little Andaman".

The Petitioner admittedly, has not yet derived any right, title and interest in respect of the lands in question. The Petitioner contends that he had been in possession of a vast area of land and planted banana trees and developed cocoanut, a recent and several other fruit bearing plantations including varieties of spices in terms of a scheme issued by the Directorate of Agriculture and Directorate of Coffee and Spice Plantation. According to the Petitioner, his application for regularisation of the lands which are in his possession is pending consideration. It is also admitted that in terms of the said scheme a distinction had been made between those who had made encroachments prior to December 31, 1978 and those who had made thereafter. Admittedly the lands belonging to the administration are of two types, (i) forest land (ii) revenue land. According to the Petitioner, he came to possess the lands as a settler. The question of evicting the encroachers came up for consideration before the Lt. Governor and under a communiqu� dated June 24, 1984 which is contained in Annexure ''A'' to the writ application, the Lt. Governor stated that the question of encroachment was being looked into and it had been decided that for the time being eviction proceedings shall be confined only in respect of post 1978 encroachers.

The Tahsildar of Little Andaman, by a telegram dated March 4, 1993, in continuation of Message No. 104 dated January 29, 1993, stated that from a report it appears that the Petitioner has committed encroachments on reserved forest lands and revenue lands during 1982 and 1989 which needs action to be taken under the provision of the Indian Forest Act, 1927, and Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation. In a letter dated September 12, 1988, addressed to the Divisional Manager, Forest, the Range Officer stated thus:

Further, it is also informed that due to non-availability of map indicating revenue land and forest land, the actual area encroached can not be worked out. Therefore, the Tahsildar, Little Andaman may be requested to arrange a joint inspection so as to demarcate the area and to assess the actual area encroached, for further action.

On the same day, however, the Range Officer who had issued the aforementioned letter to the Divisional Manager, Forest, issued a notice upon the Petitioner stating therein that it has been observed that he had unauthorisedly occupied the forest land by clearing the area at R.K. Pur (18 K.M.) village for the purpose of cultivation. By another notice dated August 28/30th, 1991, the Petitioner was asked by the Divisional Manager, Forest, to vacate the land within 7 days, failing which action would be taken against him as per the rule. On or about October 9, 1991, the Divisional Manager, Forest, asked the Tahsildar concerned to supply to them a copy of the latest approved map of Little Andaman area indicating the extent of revenue land and reserve forest land so that action can be take against the persons encroaching the forest land. The Tahsildar, Little Andaman, in reply to the said letter-stated that he was not having duplicate copy of the ma,. and, therefore, he was unable to provide the same. He, however, stated that with regard to the encroachment made by the Petitioner, the encroached land belongs to the Forest Department and within the Forest boundary. Thereafter, another notice was served upon the Petitioner on November 6/7th, 1991, whereby he was directed to vacate the said area immediately failing which action was to be taken as per Indian Forest Act, 1927. The Petitioner appears to have filed a show cause before the Divisional Manager, Forest, Forestry Division. Despite the said show cause, another show cause notice was issued on him on January 27/28th, 1993. The Petitioner appears to have filed representations before the Deputy Commissioner, Andaman and the Lt. Governor for staying such action which might be taken against him by the Corporation or other officers of the Forest Department. By a telegram dated January 29, 1993, the Assistant Commissioner, Settlement directed the Tahsildar and Divisional Manager, Forestry Division, Little Andaman, to grant stay till further orders and further directed that the Petitioner may not be evicted. The Tahsildar, however, was asked to submit a detailed report of the land in possession of the Petitioner. By another telegram dated February 4, 1993, the Divisional Manager of the Corporation asked the Assistant Commissioner, Settlement with regard to the aforementioned signal and asked for the details of the stay order for taking further action in the matter. The Divisional Manager, Forest, by his letter dated February 5, 1993 informed about the aforementioned order of stay and further stated:

The matter may kindly be pursued from your end. We may mention here that in case Shri Dhali is not evicted immediately, it will not be possible for us to evict any one who have encroached into the reserved forest land. It may also not be possible for us to stop further fresh encroachment of reserved forest land. Urgent action as well as advise on the matter is solicited.

By another signal dated March 4, 1993, the Tahsildar informed the Divisional Manager, Forest Division, that the Petitioner has committed encroachment on reserved forest land and revenue land during 1982 and 1989. By a letter dated June 26, 1993, addressed to the Managing Director of the Corporation, the Divisional Manager, Forestry, stated thus:

We have started eviction operation from 5th July 1993 from the Reserved Forest area from various places at Little Andaman with the assistance of local police, C.R.P.F. and Naib Tahsiidar, Little Andaman. On 5th July 1993, we have first evicted Shri Sushil Dhali from Reserved Forest land who had encroached 4.5 hac. of land at R.K. Pur during 1982 as per the report of Tahsiidar. This was later confirmed through a signal No. 285 dated 4.3.1993 by Deputy Commissioner,-Andaman District, Port Blair vide which we have been specifically advised by the Deputy Commissioner, Port Blair that the encroachment done by Shri Sushil Dhali of R.K. Pur on Reserved Forest land should be removed under the provision of Indian Forest Act, 1927. The Project Manager (H.Q.) vide his Confidential D.O. No. F.D.C./ Tech-ll/G/72/8 dated 7.4.1993 has also advised us to evict Shri Sushi! Dhali from the encroached Reserved Forest land under the provision of Indian Forest Act 1927 with the assistant of Tahsiidar and C.R.P.F. and only after evicting Shri Dhaii, other cases may be taken up for eviction. Therefore, we have first evicted Shri Dhali as per the advice of our Head Office and the direction given by Deputy Commissioner, Port Blair vide his signal as referred above. This operation has been done very successfully and peacefully without any untoward incidents. Thereafter we have taken other cases one after another and evicted them successfully from the Reserved Forest Land.

It was further stated as follows:

It is seen that we have evicted a total of twenty five encroachers from R.K. Pur area, three encroachers from 15 KMS. area and ten encroachers from 12 K.M. area. Therefore a total of thirty eight encroachers have been removed from the Reserved Forest land at various places in Little Andaman. This operation has been completed in four days. With this, we have evicted all the encroachments so far from the Reserved Forest land at Little Andaman.

No damage whatsoever has been caused to the evicted land nor to the adjacent land during the eviction operation. All the evicted land were flat and there is not at all any chance of soil erosion either. The entire operation of evicting thirty eight encroachments within a span of merely four days, that too under adverse climatic condition due to torrential rains, would not have been possible but for the help and co-operation of the local police.

Pursuant to the signal dated January 30, 1993, a report was submitted which is contained in Annexure ''H'' to the writ application, wherein it was, inter alia, stated as follows:

He was also applied for allotment of land under the crash programme during 1983-84 as there was a crash programme for allotment of 5 acres of land to the dependent members in Andaman District. Since 1973 to 1983-84. At least, sometimes during 1983-84 the said crash programme implemented in Ramkrishnapur Gram Panchayat area in Little Andaman and allotted 5 acres land each to 116 families dependent members all were brought from Wimberlygunj, Manarghat and Port Blair etc. though there was a policy decision to allot land to the dependent members nearby their father''s land to avoid any inconvenience to utilize the land. At that time Shri Sushil Ohali also applied for allotment of 5 acres land as a dependent member alongwith 116 others in the village where Sushil Dhali is residing but his case did not consider and except him all other 116 persons of Port Blair Islander allotted land 5 acres each in this locality.

By the said report, a request was further made to the Tahsildar, Little Andaman, to send a proposal by the shape of a revenue case for regularizing the area under occupation of the Petitioner. On or about August 28, 1993, keeping in view the fact that the Petitioner claimed settlement prior to 1978, a stay was granted by the Deputy Commissioner, Andaman. It further appears that by order No. 243 dated April 28, 1969, the Sub-divisional officer, South Andaman, purported to be in exercise of his power conferred upon him in terms of a notification dated April 1, 1969, and in consultation with the Gram Panchayat, ordered allotment of paddy land situate in village manjeri/Guptapara (area known as Laxmi Nallah) in favour of various persons named therein, whereby and whereunder the allottees were authorised to clear the land of non-commercial timber jointly and individual demarcation of plots shall be done after clearance of non-commercial timber, subject to the restrictions contained therein. It may be recorded that the Petitioner had referred to the said document only for the purpose of showing that such settlement for plantation and other purposes was being given by the competent authorities from time to time.

Mr. Roy, Learned Counsel appearing on behalf of the Petitioner submitted that despite the fact that the Petitioner''s aforementioned application for regularisation of his settlement was pending consideration and despite the fact that orders of stay had been passed by the competent authorities ; on July 5, 1993, which incidentally was a ''Ban Mahotsab day'', the action on the part of the officers of the Corporation in destroying all the plantations must be held to be wholly illegal and without jurisdiction. Mr. Roy contended that even a trespasser could not be evicted by force, and in support of his aforementioned contention, reliance has been placed in the case of Bishan Das and Others Vs. The State of Punjab and Others, and in the case of Lallu Yeshwant Singh v. Jagdish Singh AIR 1968 S.C. 620. Learned Counsel contended that in any event, the impugned action by the officers of the Corporation being wholly without jurisdiction, the same must be held to be a nullity, and thus, the Petitioner is entitled to the relief�s prayed for in the writ application, and in support of his aforementioned contention, reliance has been placed in the case of Kiran Singh and Others Vs. Chaman Paswan and Others, and in the case of Board of Trustees for the Port of Calcutta and another Vs. Bombay Flour Mills Pvt. Ltd. and another, It was further contended that in view of the fact that the properties belonging to the Petitioner had been damaged and he has illegally been evicted, he is entitled to damages, and in support of his aforementioned contention, reliance has been placed in the case of Lucknow Development Authority v. M.K. Gupta (1994) 2 S.C.C. 243; Rabindra Nath Ghosal Vs. University of Calcutta and others, ; Rudul Sah Vs. State of Bihar and Another, as also in the cases reported in Capt. Dushyant Somal Vs. Smt. Sushma Somal and Another, ; Bhim Singh, MLA Vs. State of Jammu & Kashmir and Others, ; Peoples'' Union for Democratic Rights Vs. State of Bihar and Others, ; M.C. Mehta and another Vs. Union of India and others, ; State of Bombay (Now Gujarat) Vs. Memon Mahomed Haji Hasam, ; Bishambar Nath and Others Vs. The Agra Nagar Mahapalika, Agra and Another, ; Rajasthan Kisan Sangthan Vs. State of Rajasthan and Others, ; Smt. Kalawati and Others Vs. State of Himachal Pradesh and Another, and Padma Behari Lal Vs. Orissa State Electricity Board and Another, Learned Counsel contended that the Petitioner has stated in details the wrongful actions on the part of the officers of the Respondent Corporation and submitted that from a perusal of the statements made in paragraphs 19 and 20 of the affidavit-in-opposition it would appear that the statements made in paragraphs 18 and 19 of the writ application, have not been specifically traversed, and thus the said statement must be held to have been admitted. Reliance in this connection has been placed on a decision reported in Smt. Naseem Bano Vs. State of U.P. and others, It is also accepted that criminal cases have been filed as against the Petitioner under Sections 447 and 427 of the Indian Penal Code. However, there appears to be a dispute as to whether the Petitioner continued to be in possession despite destruction of his plantations, in as much as, according to the Petitioner, he continued to be in possession despite such destruction, whereas according to the Respondents, the Petitioner made encroachment over again after he had been evicted from the lands in question.

Mr. Parekh, Learned Counsel appearing on behalf of the Respondent Nos. 7, 8 and 9 raised a short question in support of his contention. Learned Counsel submitted that the lands having been declared to be reserved forest in terms of the provisions of Section 20 of the said Act, any scheme made by the Lt. Governor in exercise of his executive power under Article 162 of the Constitution of India could not have overridden the provisions of the said Act, and in particular Sections 4 and 5 thereof. Learned Counsel contended that the scheme of the Government, if any, only applies to the revenue land and not forest land. It has further been contended that the Petitioner even does not deserve regularisation in terms of the said scheme as he had been in possession of such lands, as would appear from the reports referred to hereinbefore from 1982 onwards, that is, after December 31, 1978. Learned Counsel contended that in view of the notification dated August 16, 1990 issued by the Lt. Governor in exercise of his power conferred upon him u/s 2(2) of the said Act, the Managing Director and the Project Manager as also the Divisional Manager were entitled to take action as against the Petitioner u/s 26 of the said Act. Mr. Parekh contended that keeping in view the fact that the Petitioner admittedly has no right, title and interest in respect of the lands in question, is not entitled to any protection from this Court.

The narration of the facts clearly shows:

(1) the Petitioner claimed possession since 1973, whereas according to the Respondent Corporation, he obtained possession after December 31, 1978,

(2) the Petitioner had been in possession of the lands in question on July 5, 1993, and his plantations, namely, banana trees, cocoanut trees and varieties of spices were bulldozed and pulled to the ground by the officers of the Corporation with the help of the police authorities,

(3) the said acts were done despite orders of stay passed by the Deputy Commissioner, Lt. Governor and other concerned authorities, and despite knowledge of such orders of stay by the officers of the Forest Department as also the officers of the Corporation.

Mr. Parekh, when questioned, very candidly admitted, that but for the provisions of Section 26 of the said Act, the authorities under the said Act, or the officers of the Corporation could not have evicted the Petitioner forcibly.

In the instant case, as indicated hereinbefore, there appears to be a dispute with regard to the identity of the lands as also the nature thereof. Even the Tahsildar, against whom the Petitioner had made allegation of conspiracy, categorically stated that the Petitioner had been in unauthorised occupation done both forest and revenue lands. Of course, in one of the reports, as noticed hereinbefore, he stated that the Petitioner is in possession of the lands belonging to the Forest Department. It is further evident that the officers of the Respondent Corporation have proceeded to take action purported to be on the basis of an order dated March 4, 1993, although no such order was passed by the competent authority, and on that date, merely a report was submitted by the Tahsildar to the authorities of the Corporation. The Tahsildar is an officer of the Revenue Department. Various documents show that there exists a revenue village. Even in terms of the deed of lease, no definite area of the lease deed had been given in favour of the Corporation. Annexure-I appended to the said indenture shows the forest area in Little Andaman Island excluding the area declared as ''Tribal Reserve'' and the areas de-reserved for non-forestry purposes. The said description of the lands purported to have been leased out appears to be vague, inasmuch as, by reason of 1963 Notification itself, the entire Little Andaman Island could not have been declared to be a reserved forest. Even assuming that by reason of the said Notification, the entire Little Andaman was declared to be reserved forest, some notifications in terms of Section 27 of the said Act, must have been issued thereunder so as to declare some areas as tribal reserve and areas de-reserved for non-forestry purposes. It is also not in dispute as it becomes evident from the narration of facts as noticed hereinbefore, that even the revenue authorities claimed that a large tract of lands in the said island are revenue lands. The submission of Mr. Roy to the effect that had Little Andaman been declared to be a reserved forest, the question of various offices of the authorities, various housing complexes etc., having come up therein, would not have arisen. It further appears that there are inhabitants in the said Island and two Gram Panchayats are functioning therein, as would be evident from a report of a Gram Panchayat Committee, with regard to assessment of ''damages allegedly suffered by the Petitioner, in terms of an order passed by this Court.

In view of the order proposed to be passed by me, I do not consider it appropriate to consider as to whether a lease could have been granted in favour of the Corporation with retrospective effect and as to whether the Chief Conservator of Forest was an appropriate authority for grant of such lease in view of the provisions of Articles 239 and 299 of the Constitution of India. Assuming that the indenture dated September 30, 1987, is a valid document, a bare perusal of the relevant clauses referred to hereinbefore amply demonstrates that such lease had been granted for non-forest purposes also. Parliament enacted Forest (Conservation) Act, 1980. Section 2 of the said Act prohibits grant of reserved forest for non-forest purpose without obtaining prior approval of the Central Government. Explanation appended to the said provision defines non-forest purpose, to mean the breaking up or clearing of any forest land or portion thereof for the cultivation of tea, coffee, spices, rubber, pains, oil-bearing plants, horticultural crops or medicinal plants, any purpose other than reforestation. For the purpose of giving effect to the object and purpose of the said Act, the Central Government framed a Rule in exercise of its power u/s 4 of the Forest (Conservation) Act, 1980, known as Forest (Conservation) Rules, 1981. In terms of the said Rules, for the purpose of consideration of grant of approval, a Committee is to be constituted, composition whereof is laid down under Rule 2-A. Such approval can be granted only upon advice of the Committee on proposals received by the Central Government.

It is neither in doubt nor in dispute that the said lease had been granted apparently in violation of the provisions of the said Act. The purpose and object of the said Act has been considered by the Supreme Court in details in Ambica Quarry Works v. State of Gujarat and Ors., (1987) 1 SCC 213 and by two Division Benches of Patna High Court of which I was a member, reported in 1994 (2) B.L.J.R. 524 and 1994 (1) B.L.J.R. 586. The Supreme Court has followed Ambica Quarry''s (Supra) case in several judgments subsequently. In terms of the provisions of the said Act and in the light of the decisions referred to hereinbefore, there cannot be any doubt that the said indenture is violative of the provisions of the Forest (Conservation) Act, 1980, and the Rules framed thereunder, it may be recorded that a copy of the deed of lease was placed before this Court only today. Mr. Parekh, when questioned could not state that any prior approval of the Central Government under the Forest (Conservation) Act, 1980 was taken nor the said indenture shows any. In view of the provisions of the said Act, no grant could at all be made as the same are mandatory in nature.

In any event, there exists a dispute as to whether the lands in question fall within the reserved forest or not. Such a question with regard to the identity of the land could have only been established if a proceeding in terms of the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, or any other law for the time being in force had been initiated. If the lands did not fall within the purview of the area declared to be a reserved forest, the Forest Department and consequently the officers of the Respondent Corporation could not have taken recourse to the provisions of the Indian Forest Act. Section 26 merely empowers the authorities to institute a criminal case. Such a criminal case could have been instituted against the Petitioner for alleged violation of s 26(1)(f) of the Act, and not otherwise. In any event, the power conferred upon the officers of the Respondent corporation in terms of the aforementioned Notification could be exercised only within a project area of the corporation and not in relation to the entire leasehold. Whether the lands in question fell within the project area of the Respondent Corporation, or not, would essentially be a question of fact. That the said fact is also seriously disputed is evident from the fact that even the senior officers of the Forest Department had all along been asking from the Tahsildar a copy of the map of the village so as to enable them to demarcate the area which falls within the Reserved forest and the revenue department of the Union. Territory. Even assuming that the officers of the Respondent Corporation had the requisite jurisdiction to act u/s 26 of the said Act, even the said provision did not empower them to take law into their own hands and forcibly evict the Petitioner. In view of the admitted fact that the Petitioner had been in possession of the lands in question for a long time arid had made several plantations, the Petitioner acquired a possessor title there-over. The Corporation may be a Government of India Undertaking, but its officers howsoever high they may be, could not have taken law in their own hands. Howsoever, high the authority may be, he is not higher than the law. This country is governed by the rule of law and not rule of men. A person who is In occupation of lands for a long number of years, can be evicted only by due process of law. Failure and/or neglect to do so on the part of the Respondent Corporation, which is a state within the meaning of Article 12 of the Constitution of India, resulted in violation of the Petitioner''s fundamental right as enshrined under Articles 14 and 21 of the Constitution as also his right to property as contained in Article 300A thereof. In Bishan Das''s case (Supra), the Supreme Court has held that when a person is in bona fide possession, the executive action taken to evict him without taking recourse to law would be destructive of the basic principles of the rule of law as also the fundamental rights of the citizens who were bona fide in possession by depriving them of possession of the property by executive orders. The Supreme Court in Bishan Das''s case (Supra), quashed such executive order. In Lallu Yeshwant Singh''s case(Supra), the Supreme Court quoted with approval the decision of the Privy Council in Midnapore Zemindary''s case, wherein the Privy Council observed that in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.

The Corporation, as is evident from the indenture of lease, had agreed to take over the management of the lands for the purpose of development, extraction of forest produce and re-plantation etc. The Government merely handed over the standing forest to the Corporation. It could undertake recreation facilities, raising cash crops and plantation crops etc., subject to the general, approval of the Government to the effect from time to time and was also empowered to supply required number of timber to the local wood based industries and supply all reasonable needs of the local population of small timber, firewood, charcoal and other minor forest produce at reasonable rates. As indicated hereinbefore, the Respondent Corporation was purporting to exercise its power under the Forest Act conferred upon them in terms of the aforementioned Notification dated August 16, 1990. However, the higher authorities as indicated hereinbefore, namely, the District Magistrate and others had passed orders of stay against the action of the Respondent Corporation to evict the writ Petitioner summarily. It is now well settled principles of law that a statutory authority must exercise his jurisdiction within the four-corners of the statute. It is bound by the administrative discipline. If the statutory authority exercises a quasi judicial power, it is also bound by the decision of a superior authority. In the case of The Bhopal Sugar Industries Ltd. Vs. The Income Tax Officer, Bhopal, the Supreme Court while considering a question as to whether the Income Tax Officer could refuse to carry out a clear and unambiguous direction, which is a superior tribunal, like the Income Tax Appellate Tribunal, had given to him, held that the Income Tax Officer was bound by such direction. In Dharam Chand Jain Vs. The State of Bihar, the Supreme Court, inter alia, held that a direction issued by the Central Government under Rule 54 and 55 of the Mineral Concession Rules, 1960, is binding upon the State. The Apex Court observed that while exercising a quasi judicial power, an inferior authority is always bound to carry out the direction of the superior authority. In the instant case, as admitted, the officers of the Respondent Corporation did not even wait for the vacation, variation and/or modification of the orders of stay issued by the competent authorities, including the Lt. Governor, District Magistrate and others. They, therefore, in my opinion, even violated the orders passed by the higher authorities.

So naked and arbitrary was the action on the part of the Respondent Corporation and its officers, that even the Union of India and the local Administration headed by the Lt. Governor have not supported the Corporation in this writ application. Not only they have not filed any affidavit-in-opposition, their Counsel also did not address me in this case. For the aforementioned reasons, there cannot be any doubt that the actions of the Respondents being arbitrary, the Petitioner is entitled. to a writ of or in the nature of Mandamus directing the Respondents to restore back possession unto him. However, such a direction is not "necessary in view of the admitted fact that rightly or wrongly the Petitioner has taken back the possession of the lands in question in respect whereof and in relation whereto criminal case under Sections 447 and 427 of the Indian Penal Code has already been filed against him. The question which now arises for consideration is as to whether the Petitioner is entitled to payment of any damages. The records of this Court reveal that the Prodhan of the concerned Panchayat was directed to assess the damages suffered by the writ Petitioner. He did not submit any report directly but report was submitted by Panchayat Committee estimating the damage to the extent of Rs. 41,00,000. The said report was not accepted by this Court, The District Agricultural Officer thereafter was directed to assess the damage but it does not appear from the records that any such report has been filed. this Court in exercise of its jurisdiction under Article 226 of the Constitution of India is empowered to award damages in favour of the Petitioner where his fundamental right has been affected is neither in doubt nor in dispute, and in this view of the matter, in my opinion it is not necessary for this Court to consider the decisions which have been cited by Mr. Roy in this regard. Suffice it to say, that a Division Bench of this Court in F.M.A.T. No. 2 of 1995 (Deputy Commissioner v. Chidambaram) disposed of today, has dismissed the appeal preferred by the Administration, wherein a learned single Judge of this Court directed payment of damages as against the local administration and its officers.

The question which now arises for consideration is as to whether this Court, in the facts and circumstances of this case, should award any damages. As indicated hereinbefore, there was no proper report showing any actual loss or damages suffered by the Petitioner, but there exists a report of course which had not been accepted by this Court on a technical ground that such a report had been placed before the Panchayat Committee by the Prodhan, which was not in terms of the direction of this Court, but it shows that the Petitioner has suffered damages to the extent of Rs. 41,00,000. Mr. Parekh, however, in my opinion, is right that it is not a case where this Court is possessed of sufficient materials to assess the actual loss and damages suffered by the Petitioner although in view of the arbitrary action on the part of the Respondent Corporation and its officers in purported exercise of their statutory power u/s 26 of the said Act, the Petitioner''s fundamental right as guaranteed under Articles 14 and 21 of the Constitution has been violated, evidently, however, such violation was not in relation to his life or dignity. The violation under Article 21 mainly and principally has taken place as the procedure under the law had not been followed, and there has been an abuse of the process of law in the case of the Petitioner.

The loss and damages suffered by the Petitioner are principally in relation to his right of property, as it is stated that all the plantations raised by him were destroyed by user of bulldozer. It is further evident from the records that the concerned Respondents have taken in their own hand in adopting such a course of action. It never occurred to them that they were bound by law and they were not above law. It is now well settled that howsoever high a person may be, law is higher than him. Keeping in view the peculiar facts and circumstances of this case, I am, therefore, of the opinion that interest of justice will be sub served if the Respondents are directed to pay a sum of Rs. 1,00,000 to the Petitioner by way of compensation within 3 months from date, subject to course, to the right of the Petitioner to file a suit for damages as against the Respondents. In case, such a suit is decreed and assessment of damages, if any, exceeds Rs. 1,00,000, the same may be adjusted. This order is being passed keeping in view of the fact that while considering the question of damages, I have also taken into consideration not only the actual damages suffered by the Petitioner, but also the fact that he became entitled to such damages by reason of arbitrary action on the part of the concerned Respondents, and also for the reason that there has been violation of orders passed by the higher authorities. As admittedly, the Petitioner is in possession of the property in question, he will continue to do so till he is evicted in due course of law. Liberty is granted to the Respondents to initiate any proceeding as against the Petitioner for his eviction in accordance with law. This order should, however, not be treated to mean that I have rejected the contention of the Petitioner that he entered into possession of the lands in question prior to December 31, 1978, and thus his settlement is fit to be regularised. However, such a question, it would bear repetition to state, would depend upon the fact as to whether the lands in question fall within the reserved forest area or the revenue area of the Island. If and when such a proceeding is initiated, it goes without saying, it would be open to both the parties to raise all contentions which are available to them in law.

The writ application is, therefore, allowed with the aforementioned directions and observations with costs. Lawyer''s fee quantified at 200 G.M.S.

As prayed for by Mr. Parekh, operation of this judgment shall remain stayed for a month.