NADIRA PATHERYA, J. - (1.) 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.
(2.) 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.
(3.) 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/ -.;