Dismissed

Arun Kumar Agarwal v. the Andaman and Nicobar Administration and Ors.

Calcutta HC26 Aug 2022WPA/258/2022

Case brief

AI extract

What is this about?

The High Court dismissed two writ petitions filed by a petitioner challenging orders directing closure of his commercial establishment due to alleged illegal land diversion. The court held that the impugned orders were final, not interim, and the alternative remedy under Section 28 was available, barring writ jurisdiction.

What did the court decide?

Petitioner directed to prefer appeal before appropriate authorities under Section 28 of the Regulation.

Arun Kumar Agarwal Vs the Andaman and Nicobar… — Land Acquisition | Calcutta HC (2022)

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IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR]

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PRESENT: HON’BLE JUSTICE AJOY KUMAR MUKHERJEE

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	W	*PA No. 322 of 2022*
ARUN KUMAR AGARWAL			... PETITIONER
THE TEHSILDAR, FERRAR	GU	Versus NJ TESHIL AND OTHERS ...	RESPONDENTS
For the petitioner		: Mr. S. Samanta Mr. T.K.Das
For the respondents		:Mr. Shatadru Chakr Mr. Ramendu Agarw	aborty al
		With
	W	*PA No. 258 of 2022*
ARUN KUMAR AGARWAL			... PETITIONER
		Versus
The Andaman and Nicobar	Ad	ministration and others ...	RESPONDENTS
For the petitioner		: Mr. S. Samanta Mr. T.K.Das
For the respondents		:Mr. V.D.Sivabalan Mr. M.Lakshmanan
Heard on		: 24.08.2022
Judgment on		: 26.08.2022

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AJOY KUMAR MUKHERJEE, J.

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Being aggrieved and dissatisfied with the acts and action of the respondents the petitioner preferred the instant writ application under Article 226 of the Constitution of India.

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The petitioner contended that the petitioner is recorded tenant and/or occupant of the piece and parcel of Sy. No. 13/1 and 13/2, measuring about 1.700 hectare and 0.7500 hectare respectively classified as hilly and commercial, situated at Dhanikhari village under Ferrargunj Tehsil, South Andaman District. The land being Sy. No. 13/2 measuring about 0.7500 hectare was converted by the Sub Divisional Officer (hereinafter called as SDO), South Andaman for the purpose of eco-friendly tourism and resort vide order dated March 5, 2015. The petitioner had approached before the Canara Bank in order to obtain credit facilities to start eco-friendly resort, but after conducting inspection the aforesaid bank was pleased to reject the prayer of the petitioner as the areas has no potential scope at present for resort business.

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On May 1, 2019 business organization of the petitioner was forcefully occupied by Mahesh Kumar Agarwal and for which petitioner lodged written complaint for taking illegal possession of shop room and goods amounting to Rs. 80,00,000/- (Rupees Eighty Lakhs) and also cash amount of Rs.

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10,00,000/- (Rupees Ten Lakhs) for robbery of such goods from the shop, but no action was taken by police authorities till date.

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Petitioner further submits that having no other alternative he had to start a business of furniture shops sometimes in the early part of 2019 for his survival. On or about 3^rd October, 2019 the Tehsildar, Ferrargunj had filed a report before the SDO, South Andaman informing illegal diversion of land and illegal construction thereof based on a report received from the area Patwari.

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On receiving such report the SDO, South Andaman show caused the petitioner and the petitioner duly replied to such show cause notice. Upon receiving such reply and upon hearing the petitioner, the SDO was pleased to advice the petitioner for making application for change in purpose of use and accordingly the petitioner made application for change the purpose of using the land from eco-friendly tourism to selling of furniture. Upon receiving such application the Assistant Commissioner, South Andaman sought for an opinion from the Town and Country planner and the Town and Country planner in its opinion clearly opined that in case the building falls within the parks and Open Spaces Land Use Zone, the land can be diverted for commercial purpose only for selling of furniture and other household items, without any manufacturing activity.

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The petitioner approached the respondent authorities seeking permission for mortgaging the land for obtaining loan, but due to pendency of the RC Case No. 12/2019/SDO, the same was not issued initially, however, said case was closed based on opinion of the Town and Country planner and the petitioner was given permission to mortgage the property and a no dues certificate was also issued by the respondent authorities. The petitioner after obtaining the aforesaid permission had obtained the overdraft facilities of Rs.1,95,00,000/- (Rupees One Crore Ninety Five Lakh) from Canara Bank, mortgaging shops and the land and now repaying the same from the running income of the shops in question.

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It is submitted on behalf of the petitioner that the respondent No. 2 i.e. Tehsildar, Ferrargunj for the reasons best known to him had started suo moto case being RC No. 8/2021/SDO, stating that construction of shop for selling furniture has been created by illegal diversion of land as the land has been use for some other purpose than for which it was diverted and the petitioner was issued show cause notice in connection with the self-same issue and was directed to appear before the respondent No. 3 along with documents. The petitioner duly replied the show cause notice and attended the hearing. The respondent No. 3 had passed an ex-parte order being RC No. 8/2021/SDO dated December 14, 2021 before the

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schedule date of hearing i.e. 22.12.2021, in connection with illegal diversion of land and directed the petitioner to stop all activities until the land is diverted into the purpose for which it is being used presently.

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Petitioner being aggrieved by and dissatisfied with the aforesaid order dated 14.12.2021 preferred a writ petition being WPA No. 1 of 2022 before the High Court at Calcutta and Hon’ble Justice Kausik Chanda by his order dated 17.01.2022 was pleased to pass, inter alia , the following order:-

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“In that view of the matter, this writ petition is disposed of with a direction upon the respondents to consider the prayer of the petitioner for diversion so as to permit him to run his present business within a period of two months from date. The operation of the impugned order dated December 14, 2021 shall remain stayed for the said period of two months. If the authorities upon consideration of all relevant facts, allow the petitioner’s prayer for diversion, they will not give any effect to the order dated 3 December 14, 2021, passed by the Sub-Divisional Officer, South Andaman, and in the event the prayer of the petitioner does not find favour with the respondent authorities, they will be at liberty to implement the order dated December 14, 2021, in accordance with law…”.

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It is further submitted on behalf of petitioner that after receiving the aforesaid order dated 17.01.2022, the SDO passed an order on 12^th July, 2022, implementing their order dated 14.12.2021 without considering the pending application of the petitioner for conversion of nature of use of the land, and a subsequent notice dated 20^th July, 2022 was also issued by the said office.

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Assailing the said order dated 12^th July, 2022 and the notice dated 20^th July, 2022, the petitioner preferred a writ petition being WPA No. 258 of 2022 and the writ petition was taken up for hearing by this Court on 27^th July, 2022 and after hearing the parties the matter was kept before the next available Circuit Bench for further consideration of the matter. However, out of abundant precaution the petitioner made a fresh application for conversion of land from commercial eco-friendly tourism to selling of furniture and other items, on 29^th July, 2022. The respondent authorities despite aware of the order passed by the High Court on 17.01.2022 and despite aware of the pending application for conversion as well as opinion of the Town and Country planner, had deliberately passed an order dated 03.08.2022, inter alia , directing the petitioner to close the commercial establishment within two days from the date of receiving of the order failing which the Tehsildar, Ferrargunj was directed to seal the said commercial establishment. Being aggrieved and dissatisfied with the said order dated 03.08.2022 present writ application has been preferred by the petitioner.

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Mr. Shatadru Chakraborty, learned counsel appearing on behalf of the respondent raised a preliminary objection about the maintainability of the writ application contending that Section 28 of the Andaman & Nicobar Islands Land Revenue and Land Reforms Regulations, 1966 (hereinafter called as

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Regulation 1966) provides that the appeal shall lie from every original order passed under the Regulation or the rules made thereunder. If such order passed by revenue officer/Tehsildar subordinate to the Sub-Divisional Officer, whether or not the officer passing the order is invested with the powers of the Deputy Commissioner, appeal shall lie to the Sub-Divisional Officer and if such order is passed by the Sub-Divisional officer, whether or not invested with the powers of the Deputy Commissioner appeal shall lie to the Deputy Commissioner and if such order is passed by the Deputy Commissioner then such appeal shall lie to the Chief Commissioner. Here admittedly the orders impugned were passed by the Sub-Divisional Officer and accordingly, the appeal lie before the Deputy Commissioner. When an efficacious remedy is available to the petitioner, the present writ application is not maintainable.

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In reply Mr. S. Samanta appearing on behalf of the petitioner submits that the orders impugned are not appealable, under the Regulation of 1966, since the impugned orders are of interim in nature and had been passed in continuation of the order dated 14.12.2021 which is a stay order. The appeal is barred under section 29(d) of the regulation of 1966. The respondent authorities even after receiving the order dated 17.01.2022 passed by Hon’ble Justice Kausik Chanda had failed to take into consideration the direction and/or

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observation given by the Hon’ble Court and the respondent authorities with mala fide intention had decided the RC No.8/2021/SDO, without taking the pending application filled by the petitioner for conversion as directed by the Hon’ble Court.

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Mr. Samanta in this context relied upon Supreme Court judgement in case of Comptroller and Auditor General of India vs. K.S. Jagannathan and another, reported in AIR 1987 SC 537 and had drawn the Court’s attention that this Court in exercise of its jurisdiction under Article 226 of the Constitution has power to issue to any person or authority, including in appropriate cases, any government, throughout the territories, in relation to which it exercises jurisdiction, directions, orders, or writs and for enforcement of the fundamental Rights conferred by Part III of the Constitution or for any other purpose and he further submits that necessary directions should be given by the High Court where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations.

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Considered submission made by both the parties. On perusal of the order dated 14.12.2021 under the heading Stay Order it appears that the SDO by that order has clearly observed that the petitioner has illegally diverted the land in

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question without prior permission from the competent authority and invoking his power under Section 151 (1) of the Regulation 1966, has made a specific direction to stop all the activities upon the land until the land is diverted into the purpose for which it is being used presently.

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So this order by no means can be said to be interim order because the spirit of the order is that until and unless the land diverted into the purpose for which it is presently used by the petitioner, the order shall remain final. Now being aggrieved by the said order writ petition being WP/1/2022 was preferred and Hon’ble Justice Kausik Chanda was pleased to make direction upon the respondents to consider the prayer of the petitioner for diversion so as to permit him to run his business within a period of two months from the date. The operation of the impugned order dated 14.12.2021 remain stayed only for two months and was further held by the said Bench, if the authority upon consideration of all relevant facts allow the petitioner’s prayer for diversion, they will not give any effect to the order dated 14.12.2021 passed by the SDO but in the event the prayer of the petitioner does not find favour with the respondent authorities they will be at liberty to implement the order dated 14.12.2021 in accordance with law.

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The words “interim in nature” used in Section 29 (d) of the Regulation, 1966 has not been defined in the Regulation but

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according to the dictionary meaning, the word “interim” means for the time being, temporary, provisional or not final. Interim order purely denotes temporary order which does not decide or touch the important right or liabilities of the parties. Any order which substantially affects the right of the party or parties or decides certain rights of the parties cannot be said to be “interim” order. Therefore orders which affects or adjudicates the rights of the petitioner on vital aspect of issue in controversy cannot be said to be “interim order”.

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It further appears from the order dated 12.07.2022 that said SDO taking into consideration the order passed by the Hon’ble High Court and also considering the prayer of the petitioner, was pleased to conclude that the illegal diversion of the petitioner is not permitted in accordance with law and, therefore, the stay order dated 14.12.2021 will be implemented and shall remain in force till the land is diverted into the purpose for which it is presently being used and the Tehsildar, Ferrargunj was directed to implement the stay order dated 14.12.2021 and ensure that there is no violation of the said stay order.

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From the spirit of the said order dated 12.07.2022 also it appears that the nature of the order was not interim and was all along treated as final and by the aforesaid impugned orders the

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diversion of the petitioner was not permitted by the administrative authority and by the said order dated 12.07.2022, SDO invoking power under Section 151 (1) of the Regulation of 1966, practically reiterated the earlier order dated 14.12.2021 passed by the authority and the resultant effect was the issuance of notice dated 20^th July, 2022. It further appears from the impugned order dated 03.08.2022 that the order was passed in the matter of “illegal diversion of land under Section 40 (2) and Section of 151 (1) (b) of the Regulation of 1966” and from the contents of the order which was passed in connection with proceeding being RC No.8/2021, there is hardly any scope to say that the order impugned is an interim order. Relevant portion of the impugned order dated 03.08.2022 may be reproduced hereunder:-

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“In pursuance to the direction of the Hon’ble High Court in W.P.A No. 01 of 2020, the matter was disposed vide Order dated 12/07/2022 wherein the Tehsildar, Ferrargunj was directed to implement the stay order dated 14^th Dec, 2021 and ensure that there should be no violation of the above mentioned stay order.

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Whereas it has been reported by the Tehsildar, Ferrargunj that the Revenue Officials and the Police attended the premises of the shop located on Sy. No. 13/1/2, area 0.75 ha. situated at Dhanikhari village and asked the party to stop commercial activities thereat, but the party/representative refused to comply with the instructions.

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Whereas the recorded tenant has wilfully violated the provision of section 151 (1) (b) of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 and the corresponding provision for appropriate action for violation is given in Section 162:- The interest of a tenant in his holding or any part thereof shall be extinguished.

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(c) When the holding or such part has been transferred, letout or used in contravention of the provision of this regulations.

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Whereas keeping in view of the above violations committed, the recorded tenant is hereby directed to close the said commercial establishment within two days from the receipt of this order failing which the Tehsildar, Ferrargunj is hereby directed to seal the said commercial establishment with the help of Police personnel and compliance report of the same shall be submitted to the undersigned immediately.”

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In view of the aforesaid observation I am of the view that the bar under Section 29 (d) of the Regulation of 1966 does not attract in the present case as neither the impugned order dated 03.08.2022 nor the order dated 12.07.2022 is an interim order. The order against which WPA 258 of 2022 is preferred makes it clear that the spirit of the order is that unless diversion of the land in question be made by the petitioner, the order regarding closer of his business shall remain final. Accordingly, even if the petitioner had any cause to get aggrieved either by the order dated July 12, 2022 passed in RS No. 8/2021 by the SDO and subsequent notice dated 20.07.2022 or by the order dated 03.08.2022, the petitioner has the efficacious remedy under Section 28 (1) (b) of the Regulation of 1966. While I am conscious that the existence of an efficacious, alternative remedy is not a bar to the maintainability of the writ petition, but normally the writ court could not exercise its high prerogative writ jurisdiction, when efficacious, alternative remedy is available to the aggrieved party. Moreover, there is

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neither any exceptional circumstances pleaded nor do I find any which exist warranting this petition to be entertained .

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In view of the above both WPA 258 of 2022 and WPA 322 of 2022 are hereby dismissed. However, it is made clear that this dismissal order will not preclude the petitioner to prefer appeal before the appropriate authorities under Section 28 of the Regulation of 1966 against either order dated July 12, 2022 or order dated 03.08.2022 or against any relevant order/notice, if so advised.

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Urgent photostat certified copy of this order, if applied for, shall be supplied to the parties upon compliance of all formalities.

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(AJOY KUMAR MUKHERJEE, J.)

Arun Kumar Agarwal v. the Andaman and Nicobar Administration and Ors.

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Arun Kumar Agarwal v. the Andaman and Nicobar Administration and Ors.

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