At, High Court of Judicature at Calcutta Circuit Bench at Port Blair
By, THE HONOURABLE MS. JUSTICE MOUSHUMI BHATTACHARYA
For the Petitioners: Anjili Nag, Advocate. For the Respondents: Shatadru Chakraborty, Ramendu Agarwal, Advocates.
1. The writ petitioners seek quashing of an order dated 18th November, 2020 passed by the Deputy Commissioner, South Andaman by which the Deputy Commissioner directed the Tehsildar, Port Blair, to take over the management of the landed properties of the petitioners and not to allow any registration in respect of the landed properties of the petitioners.
2. The writ petitioners also pray for quashing of an order dated 28th January, 2022 passed by the Tehsildar, Port Blair, by which the Tehsildar entered a remark of encumbrance in the records following the order of the Deputy Commissioner.
3. The respondents have raised a point of maintainability which is required to be answered first.
4. According to learned counsel appearing for the respondents, the impugned order passed by the Deputy Commissioner is an appealable order under Regulation 28 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations, 1966. Counsel relies on Regulation 28(1)(d) which provides that an appeal shall lie from an order passed by the Deputy Commissioner, whether exercising the powers of Deputy Commissioner or Settlement Officer during the currency of the term of any statement, to the Chief Commissioner. Learned counsel appearing for the petitioners disputes the aforesaid contention on the ground that the Deputy Commissioner had no jurisdiction to pass the impugned order.
5. The point of maintainability has to be seen in the context of the impugned order passed by the Deputy Commissioner. Admittedly, the order was passed pursuant to the direction of the High Court, as recorded in the very first line of the order itself. The High Court by its order dated 24th July, 2017 had specifically directed the Administration to initiate appropriate action in respect of the subject assets in accordance with law if the Administration considered is necessary in the interim period, meaning from 24th July, 2017 to 11th August, 2017. The order further gave the authorities liberty to take appropriate steps with regard to the allegation of misappropriation of investor funds by the one of the Directors of the petitioners’ Company by way on order of seizure or attachment from a Court of law or competent authority as the case may be.
6. The impugned order passed by the Deputy Commissioner, however, goes beyond the outlines of the order of the High Court and prohibits registration of the landed property recorded in the name of the petitioners’ Company and directs the Sub Registrar, South Andaman to take steps in this regard. The impugned order does not refer to any law in the form of Rules, Regulations or otherwise by which (a) a prohibition of registration of land can be made and (b) the power of the Sub Registrar to take steps in respect of the prohibition directed.
7. The omission in the impugned order is significant since the High Court specifically directed that any steps taken against the assets of the petitioners must be in accordance in law and by way of appropriate action initiated by the Administration. Admittedly, the Deputy Commissioner /Administration did not approach a Court of law or competent authority as directed by the High Court. Hence, the impugned order of the Deputy Commissioner is found to be without jurisdiction. The plea of an efficacious alternative remedy being available to the petitioners under Regulation 28 is found to be without merit and is accordingly rejected.
8. The other objection taken on behalf of the Administration under Regulation 38 (1) (4) is also not acceptable since the Deputy Commissioner is only empowered to decide a dispute with regard to right to occupation, restriction or conveyance to land and to the tress and natural products growing on the land and reared at the expense of the any local authority. The present case is one of an endorsement of encumbrance which is different to the situations contemplation under Regulation 38 (1) (4).
9. The answer of the Court to the maintainability argument is also partly applicable to the merits to the case. The impugned order of the Deputy Commissioner directs the Tehsildar, Port Blair to take over the management of the landed properties and enter remark of encumbrances till further orders of the High Court. The order suffers from a singular absence to any reference to the governing law on the subject.
10. The direction of the Deputy Commissioner has no legal basis in support of the Tehsildar being authorized to take over the management of the landed properties or to enter a remark of encumbrances. Significantly, the learned Judge in the order dated 24th July, 2017 had specifically found that no legal basis has been demonstrated to the Court for making the impugned entry in the record of holding of the property of the first petitioner. The petitioners in that case had complained of an endorsement made by the Tehsildar by which the land could not be sold by the petitioners. Hence, it was incumbent on the Deputy Commissioner to initiate appropriate action in accordance with law as was the specific direction of the Court. The Deputy Commissioner instead chose not to initiate legal action but to give the impugned directions on the Tehsildar and the Sub Registrar, South Andaman to take over the management of the landed properties and not to permit any registration in respect of the landed property respectively. The Deputy Commissioner further directed the Tehsildar to enter remarks of encumbrances which in effect turned the clock back to the state of affairs which existed before the petitioners approached the Court in July, 2017.
11. It is also to be noted that the Administration did not seek to challenge or modify the order of the learned Judge dated 24th July, 2017. The Administration instead took it upon itself to pass orders without reference to the law on the subject matter. The order of the learned Judge dated 24th July, 2017 indicates that the earlier impugned endorsement in the record was the result of an FIR lodged in Mayabunder Police Station. Hence, it was all the more necessary to advert to the legal basis on which any kind of remarks may be made in the records affecting the right of the petitioners. The impugned order of the Tehsildar dated 28th January, 2022 merely followed the direction of the Deputy Commissioner and entered a fresh remark of encumbrance in the record of the landed property belonging to the petitioners’ company. It also sets the matter bac
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k to where the petitioners were before the High Court intervened on 24th July, 2017 and passed the interim order in favour of the petitioners. 12. It is further arguable whether the orders of the Deputy Commissioner and the Tehsildar can be sustained since both the orders were passed beyond the time-frame directed by the learned Judge. 13. In view of the above reasons, this Court find substance in the challenge to the impugned orders dated 18th November, 2020 and 28th January, 2022. The impugned orders dated 18th November 2020 and 28th January 2022 are accordingly quashed. The respondents are directed to take steps accordingly. 14. The writ petition is disposed of in terms of the above.