LT. GOVERNOR Vs. ABDUL SALAM
LAWS(CAL)-1995-1-48
HIGH COURT OF CALCUTTA
Decided on January 11,1995

LT. GOVERNOR Appellant
VERSUS
ABDUL SALAM Respondents

JUDGEMENT

Banerjee, J. - (1.)This is an appeal against the judgment dated 16th Dec., 1994 passed in C. O. 105(W) of 1994 by the learned Trial Judge, Port Blair allowing the writ application filed by the writ petitioner-opposite party and setting aside the order of eviction passed by Tehsildar on 9th June, 1994 as well as the Order passed by the Sub-Divisional Officer dated 8th Nov., 1994. The learned Trial Judge further directed the appellant to forthwith restore the status-quoanti and not to disturb the writ petitioner-opposite party's possession in respect of the land in question until the High Power Committee considers the application of the writ petitioner for regularisation in question and pay to the writ petitioner a sum of Rs. 75,000.00 towards the cost for reconstruction. Further the Registrar of this Court had directed to take steps to prosecute the Tehsildar for having given false evidence of oath.
(2.)The facts of this case shortly may be stated as follows:-
That the writ petitioner-opposite parties case is that he had unauthorisedly encroached the land of the Govt, near Phongi Chung, Port Blair. According to the writ petitioners case is that the writ petitioner came to the Island in 1964 and since then he was residing in that village and that he was running a small tea and pan shop in the said locality for his livelihood. He claimed to be unauthorised occupation of 200 sq. mtrs. of land since 1976.

It was further stated by the petitioner in the petition that some time in the year 1983 the Tehsildar, Port Blair issued a show cause notice upon the writ petitioner alleging that he was in unauthorised occupation of the said land and that it is stated that by the said notice the petitioner was asked as to why he should not be evicted from the said encroached Govt, land under his possession. It was further stated by the petitioner on oath in the petition that the writ petitioner submitted his reply to the said Tehsildar and who "after careful consideration of the facts and circumstanced did not proceed further and the petitioner continuing to live on the same land along with the members of his family". It was further the case of the petitioner is that he was paying electricity bill in respect of the electric connection which he had taken and also water charges to the Municipality According to the petitioner again a proceeding was started by the Tehsildar for eviction and order was passed on 9th June, 1994 for eviction of the writ petitioner from the said plot of land. An appeal was preferred by the writ petitioner before the Sub-Divisional Officer but the same was also rejected. Thereafter the structures were demolished and possession was taken over by the Tehsildar. Being aggrieved and - dissatisfied with the said action of Tehsildar in dispossessing the petitioner from the said and a writ application was filed. From the affidavit-in-opposition of the respondents it appears that the petitioner voluntarily made statement before Tehsildar in connection with the impugned proceeding wherein he had stated that "I came to these Islands 24 years back. I am a family man and my family consists of 8 members. I had encroached a piece of land near Phongi Chung and same was utilised for running a small pan shop 20 years back. The structure was demolished by the Revenue authority during the year 1983. I again occupied same area and started my business. Gradually extended the encroachment and constructed more rooms and let out on private parties.

From which I am getting Rs. 1200.00per month towards the room rents from four shop keepers in addition to this mentioned above I am running a pan shop in the old structure constructed during 1983 over the said area. We are all residing in the structure extended in the back side of pan shop. I hate been paying the conservancy charges to the Municipal Board till date, Moreover, I have been provided electric connection to my encroached building by the Electricity Department. The encroachment in question has already been registered by the Tehsildar, Port Blair and issue notice during the year 1983 of which all copies of the notices area enclosed alongwith the written petition which produce before this Court now. I had also applied to the competent authority to regularise the said encroachment in my favour but the reason not known to me. I am not in a position to remove the encroachment at the stage and as such pray that the said encroachment may kindly be regularised in my favour". Incidentally it may be mentioned that the writ petitioner-opposite party filed an application for regularisation of unauthorised occupation of the land in question on 22nd Feb., 1988 and in that application it was stated that he made encroachment in 1970 and that order of eviction was passed on 17th Feb, 1983. But an against the column whether the encroachment was removed and if so. when, nothing was stated or disclosed. In the said application he only stated that a notice of eviction order dated 17th Feb., 1983 was issued to vacate the said land but the then Administrator permitted him to stay there and not to vacate. This was the application that was filed for regularisation.

Sec. 38(1) of the A & N Islands Land Revenue & Land Reforms Regulation provides that all the lands in the Union Territory of Andaman Nicobar Islands is vested absolutely in the Govt, and no person shall be deemed to have acquired any property therein or any right to or over the same by occupation, prescription or conveyance or in any other manner whatsoever except by a conveyance executed by, or under the authority of the Govt." The Govt, of India framed a scheme for disposal of the Govt, land in revenue village unauthorisedly occupied on or before 31st Dec., 1978 and for creation tenancy in respect of such land this scheme saw the light of the day only on 17th Aug., 1978. It is not necessary to go into the details of the said scheme inasmuch as, the said scheme provides the terms and conditions in which the regularisation could be made and that it was made specifically clear that a relief under the said scheme should be limited to 200 sq. mtrs. only for the purpose of house sites only in the urban area. In the writ petition it has not been disclosed that in the year 1983 on the basis of the proceeding that was started under Sec. 202 of the said Regulation an eviction order was passed and on the basis of the said eviction the petitioner was physically dispossessed from the land in question and the construction made by him was demolished. It is only in the affidavit-in-opposition that the respondents have annexed the statement made by the writ petitioner that he had admitted before the Tehsildar in connection with the impugned proceeding that he was dispossessed in the year 1983, "and again occupied the same area and started my business. Gradually extended the encroachment and constructed more rooms and let out on private parties. From which am getting Rs. 1200.00 per month towards the room rents from four shop keepers.

In addition to this mentioned above am running a pan shop in the old structure constructed during 1983 over the said Area. We are all residing in the structure extended in the back side of pan shop". From the records of the earlier proceedings it appears that the earlier proceedings was started on the basis of the fact that the encroachment was made by the petitioner on 3rd Nov., 1982 and that before the authorities concerned in the earlier proceedings of 1983 a stand was S taken by the petitioner that the said land did not belongs to the Govt, but the said land belongs to one Burmese Budhist Mission. In that proceeding a show cause notice was issued stating that the petitioner was unauthorised occupation of the Govt, land measuring 50 sq. mtrs. of land and the writ petitioner was directed to vacate the said encroached land on or before 17th Feb., 1983 It appears from the file that an order of eviction was passed on a clear finding that he f was in unauthorised occupation of Govt. and since 3.11.1982 and the same was also executed. No appeal was preferred and no writ ; application was filed by the writ petitioner-opposite party challenging those findings and the matter was allowed to reach its finality.

I hereafter it is a case of the writ petitioner that he again re occupied the land from which he was evicted and also made further encroachment of the lands and on such encroached land a construction was made which was let out to several tenants. From these facts it does not at all support the case of the petitioner that the petitioner was in occupation of the said lands from 1978. It is only in a case where a person unauthorised occupation of the Govt, land under certain terms and conditions prior to 31st Dec., 1978 their cases could ' be regularised by the Govt.

The Learned Trial Judge on consideration of the facts stated in the petition as well as affidavit-in-opposition and the records that was produced before the Learned Trial Judge, the Learned Trial Judge came to a conclusion that in case there is no conflicting claims of title. What is claimed was the right to possession. There is no dispute that the petitioner was in fact in possession when he was dispossessed. It would be wrong to describe the petitioner as a more tresspasser. By virtue of the regularisation of encroacher's schemes, the petitioner has a right to gain to title in respect of the land. His position is some what into a purchaser who was taken possession of land in part-performance of an agreement for sake under-Section 53 Act of the Transfer of Property Act. The learned Trial Judge have also found that the action of the appellant was thoroughly illegal, arbitrary and mala fide.

The Learned Trial Judge has also found that the statement by the writ petitioner-opposite party before the Tehsildar which was annexed to the affidavit-in-opposition the correctness of which admitted by the writ petitioner/opposite party in the affidavit-in-reply was not admissible in evidence inasmuch as, the writ petitioner was a Tamil knowing person who has not conversant with English language and the statement which was recorded in English was not explained to him and accordingly the said statement was not binding upon the writ petitioner. We are unable to agree with the view expressed by the Learned Trial Judge that the said statement made by the writ petitioner before Tehsildar in a proceeding initiated under regulation 202 of the relevant regulation which is a law in these islands is not admissible in evidence because the reasons given by the Learned Trial Judge as the Learned Trial Judge had not taken into consideration that the statement made by the writ petitioner-opposite party was un-conditionals accepted as correct in the affidavit-in-reply filed by the writ petitioner before the Learned Trial Judge which was duly affirmed before this Court. The statement made by a party and the correctness which was admitted by that party on affidavit before this Court certainly was binding upon the party. It is abundantly clear that the writ petitioner-opposite party was evicted from the land in question by a proceeding under Regulation 202 of the said Regulation and after he was evicted and the construction was demolished he again in occupied the said area and made construction not only on the area from which he was dispossessed but be was also made further encroachment at will and on the extended encroached area he had constructed shops and building on which he was not only carrying business but also let out to several tenants.

The Learned Trial Judge has also held that the action taken by the appellant in the instant case de-proved him of his livelihood which is left within the meaning of Art. 21 of the Constitution of India and the Learned Judge has relied on several case laws on this point. The Learned Trial Judge also directed restoration of the possession of the land back to the petitioner and to pay compensation to the extent of Rs. 75,000.00 for rebuilding which was demolished by the Tehsildar in an execution of a proceeding and drawn up and concluded in accordance with law. It is not a case whether the authorities concerned has taken up the possession by executive action. The possession was taken after drawing up a proceeding in accordance with the provisions by of law and that an order was passed in such proceeding and was duly executed by the Tehsildar. Tehsildar has acted under the law and it dies not appear to us that the authorities concerned have acted mala fide or arbitrary in such a matter as held by the Learned Trial Judge.

(3.)In our view to move the writ court the condition preceucm a person must have a legal right and or to enforce the legal right and or to compel the respondent to discharge the legal duties which the authorities concerned has been entrusted in this matter. The learned Judge has held that the writ petitioner-opposite party's application for regularisation had not been dealt with and disposed of and as such he could not be evicted from the and in question. In our view the Learned Trial Judge was in taking such view. The unauthorised occupants have no legal right to regularisation unless he makes out a case of regularisation strictly in accordance with the Scheme framed in this behalf and only after he is able to establish that he has fulfilled all the conditions laid down for regularisation, his case is bound to be considered In the facts and circumstances case of the petitioner for regularisation could not be made and not maintainable because of the issuance of a show cause notice against the writ petitioner-opposite party in the year 1983 whereupon a proceeding was drawn up and categorically held by the authorities concerned that the writ petitioner was made an encroachment of land only.on 3rd Nov., 1982 and it is the claim of the petitioner-opposite party that after demolision made in respect of the said pan shop which was demolished after drawing up a proceeding, he again reoccupied that area and made further encroachment and thereon made some constructions. Accordingly, the petitioner's own case is that he had made this encroachment after 1983 and accordingly he does not come within the category of unauthorised occupants prior to 31st Dec., 1978. Further from the records it appears that the petitioner also admitted that the structure was also demolished by the Tehsildar in 1983. It may be mentioned that the petitioner has stated at different times and at different places about the time when he has encroached the land and also the area of encroachment which were inconsistent. The determination made by the authorities concerned in the year 1983 having reached its finality, is binding upon the writ petitioner-opposite party and in that view of the matter it is not open to the writ petitioner to contend that he was in occupation of the land from 1970, 1974 or 1976.1 Further it is also clear to us that the petitioner is guilty of suppression of material facts in the writ petition. In the writ petition the petitioner has suppressed the fact that he was evicted by drawing up a proceeding in the year 1983. In the writ petition he was only stated that a proceeding was drawn up and a show cause notice was issued but ultimately on getting reply, the Tehsildar did not proceed further and the petitioner continued to stay on the said land with his family members with the permission. This statement made by the writ petitioner in the writ petition was contrary to The statement made by him before the Tehsildar concerned in the impugned proceedings and that in the affidavit in reply he had admitted that the statement made by him before Tehsildar was correct. To view of such admission made by the writ petitioner-opposite party in the affidavit in reply must be held that the statement made in the writ petition to be incorrect and admittedly the writ petitioner-opposite party is guilty of suppression of material facts and he had made those statement at the total sacrifice of truth. We are of the view that the Learned Trial Judge had clearly erred in holding that the possession of the petitioner was somewhat akin to a purchaser who has taken possession of land in part performance of an agreement for sale under Sec. 53A of the Transfer of Property Act provides that if there was an agreement for sale of a land and if the purchaser is paid the consideration money and the seller has put the purchaser in possession of land, in that event the doctrine of part performance is envisaged in 53A could be invoked. In the facts and circumstances of this case that the doctrine of part-performance is wholly in-applicable and cannot be invoked at all In any event in favour of a rank tresspasser of Govt, land the doctrine of part performance could not be invoked and the Court cannot respect and protect the possession of a rank tresspasser of Govt land. The writ .Court cannot interfere with the finding of facts made by the authorities unless the findings are perverse. In this case the findings of facts made by the Tehsildar affirmed by the appellate authority could not be interfered with by the Learned Trial Judge. In this instant case admittedly the writ petitioner-opposite party was an unauthorised occupation of the Govt, land in contravention with the provisions of law and that he had been evicted in the year 1983 by drawing up a proceeding in accordance with law and again another proceeding was drawn up in the year 1994 and accordingly his own admission the petitioner is an unauthorised encroacher in 1983 and is Dot entitled to be regularised and in the facts and circumstances of this case. An unauthorised occupant cannot come within the scope and ambit of the regularisation scheme which was promulgated by the authorities concerned on 17th Aug., 1987 unless he fulfilled the conditions and admittedly the petitioner-opposite party could not be considered to bean unauthorised occupant or encroacher of land prior to 1979 and continued in occupation since then. Accordingly, we are of the view that the writ petitioner-opposite party was not entitled to any relief on the writ application and that there is no question of restoration of the possession of land back to the petitioner, who was admittedly a rank tresspasser.
The Learned Trial Judge referred to the decision of the Supreme Court in the Kalyani Banerjee and Ors., reported in AIR 1973 SC 408 wherein the Supreme Court was also held that where the respondent in possession of the disputed lands has raised a serious question as to the validity of petitioner's title and though the petitioner has shown prima facie title, but there was no conclusive evidence to that point, the High Court in writ proceedings cannot put back petitioners into possession by displacing the respondent. In the instant case admittedly the Andaman Administration is the owner of the and under the law and that admittedly to the petitioner had no right, title and interest in the land and accordingly in view of the principles laid down in the Supreme Court in this case, the question of putting the writ petitioner-opposite party who was a rank tresspasser back to his possession did not could not arise at all. Admittedly the authorities have absolute right title and interest in the property. Admittedly the petitioner is an unauthorised encroacher of the and and that it is only after unauthorised occupation is regularised by the Administration and tenace is granted in hat event the right occupation could be created but in the instant case the writ petitioner does not come within the scope and ambit of the principles laid down for regularisation of the and by virtue of the notification issued by the authorities concerned on 17th Aug., 1987. Further in the instant case we are of the view that the writ petitioners have no right to regularise the said unlawful occupation or encroachment of the Govt, land, save and except in a case which come within the scope and ambit of the said regularisation scheme.

There may be a case of discrimination between the two persons similarly situated Here no case made out by the writ petitioner opposite party that similarly situated persons unauthorised occupation of Jaw have been regularised. We are of the view that the learned Trial Judge was wrong in granting relief on the basis of the writ petition which has been filed by the opposite party at the total sacrifice of truth. Before we part with this matter we make it clear that the learned Judge was erred in holding that the Tehsildar is gushy of making false statement on oath, such a charge could have been levelled against the writ petitioner-opposite party but not against the Tehsildar and we do not find that Tehsildar had been made any statement which is false or bad been made at the total sacrifice of truth. Tehsildar's statements are borne out 01 official records. We have pursued the records and on consideration of the entire facts and circumstances of the case we are on the contrary, of the view that if the writ petitioner who was guilty of making wild allegations and taking shifting stands according to own convenience, It is stated that the writ petitioner is a poor and alleged to be an illiterate and according we do to take any action for making such statements at the total sacrifice of truth against the writ petition.

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