Calcutta High Court (Appellete Side)
Dr. Mohammed Ali vs Shri Mohammed Rafique & Ors on 28 April, 2016
Author: Aniruddha Bose
Bench: Aniruddha Bose
1
19 28.04.2016
CHC Ct. No.24 C.A.N. 3924 of 2016
M.A.T.625 of 2016
Dr. Mohammed Ali
Vs.
Shri Mohammed Rafique & ors.
Mr. Joytosh Majumder,
Mr. Supratim Dhar,
Mr. Zafirul Islam
....for the appellant
Md. Tabrak Ali
...for the respondent No.1/
writ petitioner Affidavit of service has been filed today in Court be kept on record. From this affidavit we find that service has been effected on the Chief Secretary, Andaman and Nicobar Islands and the Deputy Commissioner, South Andaman District and such service has been effected on the aforesaid respondents on 22nd April, 2016. None however appears on their behalf. In such circumstances, we are taking up this application in absence of any representation from the Andaman and Nicobar Administration.
The dispute in this writ petition relates to carving out certain portion of land which is alleged to be in 2 possession of the appellant, for the purpose of creating a pathway for ingress and egress of the respondent No.1. The plots of both the appellant and the respondent No.1 originally belonged to one late Mubarak Bibi (since deceased) and subsequently, several plots out of her original possession have been transferred to her children. There are some disputes on that account but in this appeal we are not concerned with those disputes. The appellant is the subsequent purchaser of one of such plots.
Dispute had arisen as regards the entry point to the land of the respondent No.1/writ petitioner. In the absence of a pathway, he claimed to have had become landlocked. Dispute was raised before the Deputy Commissioner, South Andaman District, Andaman and Nicobar Islands for resolving this issue by the respondent/writ petitioner in terms of Clause 97 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966. From page 49 of the stay petition, we find that a proposal was mooted by an authority subordinate to the Deputy Commissioner for resolving the dispute in a particular manner. We are informed by learned counsel for the parties that this 3 proposal was actually mooted by the Tehsildar. The Deputy Commissioner had agreed to that proposal, as it appears from his endorsement in the note-sheet at page 50 of the stay petition, but he sought for clear sketch map of the land involved.
The respondent No.1/writ petitioner sought a direction for implementation of a proposal dated 16th June, 2014 by filing a writ petition before the Circuit Bench of this Court at Port Blair which was registered as W.P.400 of 2014. This writ petition was disposed of on 12th December, 2014 with a direction upon the Deputy Commissioner who was to hear the parties again if necessary and act on the proposal dated 24th July, 2014 or any other agreed formula within 8 weeks from the date of passing of the order. It is admitted position that the proposal of 16th June and 24th July, 2014 are the same, which was referred to in the order of this Court passed on 12th December, 2014.
The writ petition out of which this appeal arises was instituted by the petitioner primarily seeking implementation of that proposal, and this time he was fortified with the direction of the Court in W.P.400 of 2014. This writ petition (W.P.125 of 2016) was disposed 4 of by an Hon'ble Single Judge of this Court on 15th March, 2016 with the following observation and direction:
"Unfortunately, the concerned Deputy Commissioner, South Andaman District did not appreciate the purport of the order passed by this Court. If there is no agreed formula, the proposal dated 24th July, 2014 ought to have been accepted. The petitioner has right to have egress and ingress through the pathway/passage which was existing for long time.
In view of the aforesaid reason, order dated 13th July, 2015 passed by the Deputy Commissioner, South Andaman District is set aside.
The Deputy Commissioner, South Andaman is directed to accept the proposal dated 24th July, 2014 and to pass necessary order within four weeks from the date of communication of this 5 order.
In case of any encroachment on the pay way, the Administration is directed to remove such encroachment." It is this order which is assailed before us by the client of Mr. Majumder. His submission is that the said order contains a mandatory direction on the Deputy Commissioner, South Andaman District to implement the proposal in the event no other agreed proposal is available or arrived at. There is in fact mandatory direction on the Deputy Commissioner, South Andaman District to accept the proposal dated 24th July, 2014 and pass necessary order within four weeks from the date of communication of the said order.
We have gone through the note-sheets in which the proposal of 24th July, 2014 has been specified. It does not appear from the available records that this proposal had the concurrence of all the disputing parties. The order of the learned Single Judge issued on 12th December, 2014 in W.P.400 of 2014 (at page 52 of the stay petition) does not contain any specific mandate that in the event no other agreed formula is available, the Deputy 6 Commissioner, South Andaman District is to implement the proposal of 24th July, 2014 as it is. The learned Single Judge had directed the Deputy Commissioner, South Andaman District to hear the parties again and it is implicit in that order that the proposal, to be implemented had to be agreed by all the parties. If the parties to the dispute did not agree, it is obvious that Deputy Commissioner, South Andaman District would have had to exercise his adjudicatory power for determining the rights of the parties and we do not find from the records such power was actually exercised. In such circumstances, we do not think the Hon'ble First Court ought to have directed mandatory implementation of the said proposal, without proper adjudication. As there was no agreement among the parties, we find that part of the order to be unsustainable.
By consent of the learned counsel for the parties we are also taking up the appeal for hearing together with the stay petition though the Andaman and Nicobar Administration is not represented before us. We are satisfied with service upon them. In our opinion, the final direction which we are passing in this order shall in any event render the appeal infructuous. For the reason 7 already given, the last two paragraphs of the order impugned shall stand set aside. Both the appeal and the stay petition shall stand disposed of in the above terms.
We accordingly set aside the last two paragraphs of the order impugned. So far as the direction in the last paragraph of the order is concerned, in which any encroachment on the pathway has been directed to be removed by the Administration, we make it clear that if the encroachment is on account of any act of the parties to this proceeding, then no such step shall be taken till conclusion of the dispute by the Deputy Commissioner, South Andaman District. If the encroachment involves other intruders, then the law will take it own course.
We are apprised by the learned counsel for the parties that date has been fixed for hearing the matter by the Deputy Commissioner, South Andaman District on 29th April, 2016. The Deputy Commissioner, South Andaman District may proceed with the hearing in view of our observations made in this appeal.
Mr. Majumdar, learned counsel expressed difficulty of his client to attend the hearing tomorrow itself as he is in the city of Kolkata to prosecute the appeal. In such a situation a short adjournment may be prayed for before 8 the Deputy Commissioner, South Andaman District and if such prayer is made, the same shall be considered in the given facts by the Deputy Commissioner, South Andaman District.
The records of this appeal shall be transmitted back to the Circuit Bench by the Registry forthwith.
Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Aniruddha Bose, J.) (Sankar Acharyya, J.) 9