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2024 DAILYLAW 2344 (CAL)

Rehana Begum v. Andaman & Nicobar Administration

2024-06-24

Ajoy Kumar Mukherjee

body2024
JUDGMENT : Ajoy Kumar Mukherjee, J. 1. The present application pertains to issuance of Writ of Mandamus for setting aside the order of Sub Divisional Officer (SDO), South Andaman dated 17.08.2023 by which SDO has rejected Writ Petitioner’s prayer for diversion of land and also for issuance of Writ in the nature of mandamus commending the respondent No.2 to issue final order for diverting the land as sought for by the Writ Petitioner. 2. The petitioner’s case in brief is that, the petitioner is the recorded tenant of land bearing survey No. 818/5 measuring an area of 228 sq. meter situated at Calicut village. In order to divert the said land petitioner has preferred an application before SDO, South Andaman on 11.06.2019 and after receipt of the said application, SDO conducted enquiries and issued final notice on 29.07.2019 asking the Writ Petitioner to appear before him for hearing. After such hearing, the authority concerned approved the petitioner’s prayer for diverting the land in question into house site on 04.09.2019 and further directed the petitioner to deposit the requisite premium. It is further submitted that as per direction of the authority, the premium was also paid by the petitioner on 11.11.2019 but in spite of that, the respondent concerned had not passed formal order for diversion in respect of the petitioner’s land in spite of several representations made by Writ Petitioner. 3. Petitioner finding no other alternative, preferred a Writ Petition before this Court being WPA No. 896 of 2022 seeking direction upon the respondent authority to issue order for diverting the aforesaid land for which the premium has already been deposited by the petitioner. 4. This Court by its Judgment dated 15.12.2022 directed the respondent authority to take a suitable decision and to pass a final order about diversion after carefully scrutinizing entire records within a period of two months from the date of communication of the order. The respondent authority namely SDO, South Andaman disposed of the petitioner’s representation by the impugned order wherein respondent authority has rejected the Writ Petitioner’s representation on the ground that the Administration is in the process of examining the re-drafting of a policy related to comprehensive master plan for the Island and as such disposing of the said prayer in terms of the existing master plan will be devoid of any purpose. Relevant portion of the order impugned runs as follows:- “It is a matter of fact that out of total geographical area of the island only 6 percent is the revenue land and rest is categorized as Forest. And out of this 6 percent revenue land only miniscule percentage is suitable for agriculture due to the unique topography of the island which comprises of hills, creeks, backwaters, and undulated areas. Further, in the absence of planned development, the land suitable for agricultural is already shrinking at a faster pace. Hence, there is a need to conserve agricultural land in general. To address the problem of unplanned development, the Andaman and Nicobar Administration is in the process of examining the redrafting of a policy related to comprehensive Master Plan for the island as the existing Master Plan is not in consonance with the current needs of development as well as the need for protection of the environment and sensitive ecology of the island. Hence, disposing the instant case in terms of existing Master Plan will be devoid of any purpose.” 5. Being aggrieved by that order, Ms. G. Mini, learned Counsel appearing for the petitioner submits that the respondent authority once approved the request of the petitioner in the year 2019 for diversion of the aforesaid land and once he had permitted the petitioner for the aforesaid diversion and when in terms of aforesaid approval order, the petitioner had deposited the premium in terms of section 40 (6) of the Andaman & Nicobar Islands Land Revenue and Land Reforms Regulation, 1966. They cannot again revisit the order after four years. She further contended that the present SDO has no power to sit in appeal against the decision of his predecessor nor the present SDO has any power to revise or review his own order passed in the year 2019. 6. She further submits that the land in question is measuring about 228 sq. meter and no agriculture can be possible over this quantum of land. She further submits that present Master Plan under which the petitioner’s prayer for diversion was allowed, had been approved by the Hon’ble Lieutenant Governor and the present SDO cannot ignore such Master Plan approved by the Lieutenant Governor on a flimsy ground that a modified Master Plan is in the pipe line. 7. Mr. She further submits that present Master Plan under which the petitioner’s prayer for diversion was allowed, had been approved by the Hon’ble Lieutenant Governor and the present SDO cannot ignore such Master Plan approved by the Lieutenant Governor on a flimsy ground that a modified Master Plan is in the pipe line. 7. Mr. V.D. Sivabalan, learned Counsel appearing for the respondent submits that as per record, land bearing survey No. 818/5 measuring area of 0.0228 hector and Abadi land bearing survey No.808/2 measuring an area of 182 sq. meter classified as house site stands recorded in the name of Writ Petitioner, Rehana Begum. He further admits that earlier SDO approved the request of the petitioner for diversion of land into house site and directed the petitioner to remit the requisite amount of premium towards diversion but in this context, Mr. Sivabalan further submits that during the period of whole proceeding of the present diversion case, diversion of land are almost stopped due to policy matter. He further submits that like the present petitioner, already some other persons also had remitted the premium towards diversion but no formal order has been issued as the respondent cannot act on the basis of pick and choose, which may deprive other considerable number of applicants who are in the queue. He further submits that since a policy is pending on land diversion, compliance of the order passed by erstwhile SDO regarding diversion may lead to more complications in other cases of the similar nature. Like the petitioner, 27 applicants of similar nature involving diversion cases will be affected, where the land holders had also deposited the premium. 8. He further submits that on the ground of absence of planed development, the land suitable for agriculture is already shrinking at a faster pace and there is need to conserve agricultural land in general to address the problem of unplanned development and for which the Andaman & Nicobar Administration is in the process of examining the re-drafting of a policy relating to comprehensive Master Plan for the Island as the existing Master Plan is not in consonance of the current development as well as the need for protection of the environment and sensitive ecology of the island. Accordingly, Mr. Accordingly, Mr. Sivabalan, learned Counsel submits that the Administration was justified in rejecting prayer made by the petitioner, which does not call for any interference exercising writ jurisdiction by this Court. 9. I have considered the submission made by the parties. It is not in dispute in the present context that the Writ Petitioner was directed to appear before the SDO, South Andaman for hearing on 04.09.2019 in compliance with Section 40(2) of the Regulation of 1966. Accordingly, on 04.09.2019 after hearing, the SDO had approved the prayer made by the petitioner and he was directed to deposit the premium under Section 40(6) of the Regulation, by which the SDO is authorized to ask for deposit of premium when the land used for any purpose is diverted to some other purpose and the land revenue has been assessed thereon under the provision of said section and thereby to impose the premium. 10. Rule 4A (4) of the A & N Islands Land Revenue and Land Reforms Rules, 1968 states when an Application of land used in any holding is not rejected by the SDO, he shall on deposit by the Applicant of the premium, allow such diversion in accordance with the terms of the grant made. 11. Annexure P-3 shows that the Writ Petitioner has also deposited the premium which was accepted by the authority. Accordingly, it can be said that the proceeding of the petitioner’s case has already been completed by accepting the premium as per the Regulation and such action was also taken in terms of section 40 of the Regulation. Though the respondents authority have referred about policy decision but no such policy decision has been shown to this Court to establish that the existing diversion policy is not in force. 12. Learned Counsel on behalf of the petitioner has rightly pointed out that the present SDO has no power to review his own order as provided in Section 34 of the Regulation because SDO is not Revenue Officer under Section 3 of the said Regulation and as such SDO has no power to revise the permission already granted to the Writ Petitioner which is not in disputed in the present context. It has been rightly pointed out that the Master Plan which is in force was approved by the Lieutenant Governor and the existing Master Plan has been approved by the Lt. It has been rightly pointed out that the Master Plan which is in force was approved by the Lieutenant Governor and the existing Master Plan has been approved by the Lt. Governor and in such view of the matter, SDO cannot have any power to stay the operation of the plan on a flimsy ground that ‘Administration is in the process of examining the re-drafting of a policy related to comprehensive Master Plan for the Islands as the existing Master Plan is not in consonance with the collecting needs of development as well as the need for protection of the environment and sensitive ecology for Islands’. 13. In such view of the matter, the observations made in the order impugned that “disposing the Writ Petitioner’s representation in terms of existing Master Plan will be devoid of any purpose” is perverse, especially when existing Master Plan is in force and the present SDO cannot overrule such Master plan which has been approved by the Lt. Governor. Since the respondents have not introduced any new policy as yet, in place of existing one, which is also not denied in the order impugned, the respondent authority cannot have any right to keep pending the issue from 2019 on an imaginary claim of bring a new policy which admittedly not yet seen the light of day and neither the petitioner nor the common people are aware of any such so called policy. The respondent authority although have taken a plea that many other cases of the same nature are pending but that cannot be a ground for rejection of the petitioner’s prayer and petitioner cannot be deprived as to his legitimate right for sheer incompetence on the part of respondent authority by turning decision making process an absolute mockery. 14. In such view of the mater, the order dated 17.08.2023 passed by Sub Divisional Officer, South Andaman is hereby set aside. 15. The SDO, South Andaman is hereby directed to pass necessary order in respect of diversion of aforesaid land which has already been approved and in respect of which the premium has already been paid and to make necessary correction in the record regarding diversion within a period of six weeks from the date of communication of the order. 16. WPA 940 of 2023 is accordingly disposed of. 17. However, there shall be no order as to costs. 18. 16. WPA 940 of 2023 is accordingly disposed of. 17. However, there shall be no order as to costs. 18. Urgent Xerox certified copy this judgement be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities.