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2024 DAILYLAW 2436 (CAL)

K. R. Suresh Kumar v. Lieutenant Governor

2024-12-05

Arindam Mukherjee, Biswaroop Chowdhury

body2024
JUDGMENT : Biswaroop Chowdhury, J. This instant appeal has been preferred by the writ petitioner arising out of an order dated May 3rd, 2024 passed by a learned Single Judge of this Court in a writ petition being no. WPA 16/2022 by which the said writ petition was dismissed. In the writ petition, the appellant had challenged an order dated October 21st, 2021 by which the learned Lieutenant Governor, Andaman and Nicobar Islands had inter alia dismissed the appellant’s prayer for regularization of the land allotted to the appellant. The case of the appellant/writ petitioner may be summed up thus. i) The petitioner is a descendant of a pre-42 settler and is in possession of land measuring an area of 180 sq mtr bearing sy No. 1969/2 and 1971/4 area 60 sq mts and 120 sq mts respectively situated at village Aberdeen under Port Blair Tehsil since 1970. Subsequently during the year 1987 the above patch of land was allotted in favour of the petitioner under Section 146(ii) of the Andaman and Nicobar Islands, Land Revenue and Land Reforms Regulations 1966 (hereinafter referred to as the Regulation) on approval of the competent authority (Respondent No. 1) and license under Form AG-1 (for house site) was also issued. ii) Subsequent to the allotment the license and formal possession of the land was also made by the revenue authorities and possession certificate has been handed over to the petitioner in presence of two witnesses. Possession certificate clearly indicates handing over of license in Form- AG-1. iii) The petitioner is in possession of the land till date after the same was handed over to the petitioner and the name of the petitioner appears in the extract of Khasra Register of Village Aberdeen. iv) The above land being allotted in favour of the petitioner the petitioner has been continuously paying the land revenue to the authorities for 5 years from 1987-1991. v) The petitioner went to pay the land revenue for the year 1992 but the revenue authorities refused to take the Land revenue. The petitioner was informed that the said plots of land were given on a lease for a period of 5 years to the petitioner, the lease period has expired and the land will be resumed by the authorities very soon. The petitioner was informed that the said plots of land were given on a lease for a period of 5 years to the petitioner, the lease period has expired and the land will be resumed by the authorities very soon. vi) The petitioner started corresponding with the authorities for correcting the anomaly in the records and to regularize the allotment in petitioner’s favour as a licensee land. Submission on behalf of the Appellant/Writ Petitioner:- 1. According to the petitioner the license was issued under Form AG-I and the same was allotted under Regulation 146(ii) of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 (hereinafter referred to as the said “Regulation’’) as such the petitioner has been conferred with the rights and liabilities to enjoy the land as license only. 2. It is also the case of the petitioner that when a land given for a specified period the same is only permissible as ‘grant’ under the said Regulation. The same is required to be made in Form AF as mentioned in Regulation 146(i) of the said Regulation read with Rule 164 of Andaman and Nicobar Islands Land Revenue and Land Reforms rules, 1968 (hereinafter referred to as the said “Rules”). Neither the said Regulation nor the said Rules anywhere describes “lease”. 3. The “grant” in respect of a land on the other hand is made for agricultural tenancy only and not for the land specified as House Site and it is also stated that Agricultural land having areas of 60 Sq.mts and 120 Sq.mts cannot exist as a separate survey number (contravenes Rule 48 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Rules 1968 both the then existing rule as well as the present Rule position). These can only be survey numbers allotted as License under Rule 145 of the Regulation. Further, the subject land is situated in the heart of the city and cannot by any stretch of imagination be categorized as Agricultural land. 4. The petitioner himself claims to be in physical possession till date since 1970 and is paying the water tax conservancy Tax to the Port Blair Municipal Council and for the Electric Consumption for the building located over the Land regularly. 5. 4. The petitioner himself claims to be in physical possession till date since 1970 and is paying the water tax conservancy Tax to the Port Blair Municipal Council and for the Electric Consumption for the building located over the Land regularly. 5. The petitioner submitted number of representations to the respondents to accept the land revenue and to regularize the anomaly so as to correct the records pertaining to allotment of land made to the petitioner at Aberdeen. 6. As the respondent no-2 did not consider and decide the representation made by the petitioner the petitioner moved a writ application before this Hon’ble Court being WP.209 of 2018. 7. By Order dated March 7th, 2019 Learned Single Judge of this Court was pleased to dispose of the Writ Application being WP.No. 209 of 2018 by directing the respondent no-1 to consider the representation made by the petitioner praying for regularization of the land allotted to the petitioner within a period of seven weeks from the date of communication of the copy of the order after giving the petitioner an opportunity of being heard. 8. As the respondent no-1 did not take any steps to comply the order in WP No – 209 of 2018 the writ petitioner/ appellant moved an application for contempt being CPAN No. 008 of 2021. Pursuant to the filing of the contempt application, notice was issued by the Deputy Commissioner (Respondent no-2) to the appellant for hearing. 9. The petitioner appeared at the hearing in pursuance to the notice and the Deputy Commissioner South Andaman District directed Tehsildar Port Blair Tehsil to furnish a detailed report in that regard. 10. Upon Submission of report by the Tehsildar, Port Blair Tehsil on 1/07/2019 the petitioner submitted objection to the report of the Tehsildar and the matter was referred to Respondent no-1 for further adjudication of the case. 11. After a long period of time the respondent no-1 issued the notice for hearing of the case and as per the notice the date fixed for hearing was on 03-09-2021 but the office of the respondent no-2 published a news item in the Daily Telegram wherefrom it alleged that Andaman and Nicobar Administration has taken back the possession of the subject landed property in 02-09-2021. 12. 12. From the alleged Act it shows that the respondent no-1 being pre-determined without hearing the case or taking steps under law published such a news item. 13. The petitioner appeared before Respondent no-1 and submitted documents that he is still in possession of the subject land. 14. By Order dated 21-10-2021 the respondent no-1 rejected the claim of the writ petitioner/appellant. 15. The writ petitioner/appellant being aggrieved by the order of rejection dated 21-10-2021 passed by the respondent no-1 moved a writ application before this Court being WPA 16/2022. 16. The contention of the writ petitioner/appellant before the Learned Single Judge was that licence was issued to the petitioner with regard to the said plot of land which is wrongly recorded in the revenue records in the remarks column “as on Lease basis for the Period of 5 years”. It was further contended by the petitioner/appellant that the respondent no.1 failed to consider the written submission filed by the petitioner and in a mechanical manner rejected the claim of the petitioner purely based on a false plea that the land has been taken over by the Revenue Authority one day before hearing. The respondents contested the writ application by filing affidavit in opposition. In the affidavit in opposition the respondents contended as follows which is also the submission before the Division Bench. Submission of the Respondents:- a) The Revenue records available with the area Patwari were verified wherein it was found that as per the Khasra Register of 1961 Survey, the land bearing Survey No. 1969 total area 1.7951 situated at Aberdeen Village was recorded as Government land classified as “Coconut” prior to 1987. Similarly, prior to 1987, the land bearing Survey No. 1971 total area 1.5511 Hect situated at Aberdeen village, Port Blair Tehsil was recorded as Govt. land and classified as “Tank”. b) In the year 1987, land was granted to the writ petitioner for the purpose of Poultry Farm on lease basis for five years. c) The petitioner’s contention is that he has constructed a gate with a structure inside the compound (covered with a wall) and has electric connection, does not give him the right of tenancy in respect of the said subject land. It is clearly mentioned in the order book maintained by the area Patwari that the petitioner shall not construct any structure of permanent nature. It is clearly mentioned in the order book maintained by the area Patwari that the petitioner shall not construct any structure of permanent nature. d) That in his initial representation dated 05.12.1991 the petitioner had requested for regularization of the subject land which was leased to him for a limited period of five years for poultry farming on 23.01.1987 in RC No. 1088/85/DC. In the subsequent application dated 19.04.1995, 26.05.2005 & 22.03.2918, the petitioner had requested to correct the anomaly in the records and term it as Agricultural land enabling him to start poultry farm. Moreover, the petitioner has not been able to produce the original licence in respect of the subject sites/land. The onus probandi is upon the writ petitioner to produce the original license. e) As far as the question of scheme for regularization of pre-1978 encroachment is concerned, it was a one-time scheme to regularize the encroachment committed prior to 31.12.1978 and after considering the eligible cases. The said scheme was closed on 31.03.1999. f) As construed under Section 145 of the Andaman and Nicobar Islands Land Revenue and Land Reform Regulation 1966 that every person belonging to any of the classes mentioned therein shall be called in licensee and shall have all the rights and be subject to all the liabilities conferred or imposed upon a licensee by or under this Regulation, namely- g) Every person who immediately before the commencement of this regulation was in occupation of any land in pursuance of a licence granted under the provisions of the Andaman and Nicobar Islands (Land Tenure) Regulation 1926. Every person who is granted a licence in respect of any non-agricultural land under clause (ii) of section 146. h) According to the respondents, Sub section (i) of section 146 of the Andaman and Nicobar Islands Land Revenue and Land Reform Regulation 1966 envisages that the Chief Commissioner may on such terms and subject to such condition as he thinks fit to make to any person for the cultivation of coconuts, coffee, rubber and other long lived crops and for the construction of buildings and works to be used for the purpose of, or in connection with, such cultivation, a grant of land for any period not exceeding thirty years with an option for renewal for a like period. Sub-section (ii) of section 146, grant of licence in writing to any persons to occupy any land to such extent and for such purpose as may be prescribed. Clause (v) of subsection (2) of the section 2 defines agriculture which includes poultry farming. The land, therefore, has to be construed to have been given in lease for a limited period as the same was given for poultry farming. The District Administration has taken back the possession of the land bearing survey number 1969/2 measuring an area 0.0060 hects. and land bearing survey number 1971/4 measuring an area 0.0120 hects. respectively, situated at Aberdeen Village since it was granted to the petitioner for a limited period of five years. The records of the subject land has been reversed in favour of Government which was also published in the Daily Telegrams issued dated 02.09.2021. Upon hearing the Learned Advocates for both parties Learned Single Judge was pleased to dispose of the writ application WPA 16/2022 by observing and directing as follows:- “11. ‘Here in this case, writ petitioner’s claim is that he was granted licence of the subject land under AG-1 Form and admittedly no such original or copy of the licence has ever been produced before this Court. Rather writ petitioner took a plea that said original licence or copy of it was not available with him as it was misplaced. 12. In support of writ petitioner’s contention, Ms. Mini has referred to the possession certificate (annexure P1). And relying on that particular possession certificate writ petitioner claimed his right as licensee under the provision of Section 146(ii) of the Regulation Act. 13. After scrutiny of the possession certificate it comes to my view the word ‘license’ was used by the writ petitioner himself under his own signature by stating as follows:- “License issued in Form AG-1 have also handed over to me.” 14. After the perusal of the Khasra Register of the Aberdeen Village (annexure P2) it has come to my notice that the subject land as per the record of the register was allotted to the writ petitioner on lease basis for a period of five years only. After the perusal of the Khasra Register of the Aberdeen Village (annexure P2) it has come to my notice that the subject land as per the record of the register was allotted to the writ petitioner on lease basis for a period of five years only. In addition to that, the writ petitioner vide his application dated 05.12.1991 (annexure P4) made a request himself to the Deputy Commissioner for extension of ‘lease tenable as the scheme for that purpose was only for a one time basis and the scheme was closed on 31.03.1999 and moreover the subject land had already been reverted back in favour of the Government. Hence neither the prayer for regularization nor the extension of the lease as prayed for was allowed. 18. In the aforesaid view of the matter, I do not find any infirmity in the order impugned. 19. In the result, the instant writ application being no. WPA 16 of 2022 stands dismissed.” Heard Learned Advocate for the Appellant and Learned Advocate for the respondents perused the materials on record. The writ petitioner has produced the Possession Certificate which records “Licence” and the land revenue receipts. Neither in the Possession Certificate nor in the land revenue receipt it is stated that the land has been given for a limited period of five years. On the other hand, the respondents have heavily relied upon the Khasra Register wherein the remarks column it is recorded to be on lease for five years. However, the fact of issuance of the licence or the Possession Certificate or the payment of land revenue from 1987 to 1991 has not been disputed by the respondents. The moot question which, therefor, falls for consideration as to whether the appellant/writ petition was given the land on licence or for a lease of five years. Analysis :- On reading the said Regulation and the said Rules, it is apparent that there is mention of only “licence and grant”. Licence appears to be for unlimited period while grant is for limited period which is ordinarily 30 years with an option for renewal. The term lease is nowhere mentioned in either said Regulation or the said Rules. Concept of lease, therefor, is to be considered from the provisions of the Transfer of Property Act, 1882 (hereinafter referred to as “1882 Act”). The term lease is nowhere mentioned in either said Regulation or the said Rules. Concept of lease, therefor, is to be considered from the provisions of the Transfer of Property Act, 1882 (hereinafter referred to as “1882 Act”). Sections 105, 106 and 107 provide for a framework as to what is lease, the tenure of lease and lease how to be made. The provision of Sections 105, 106 and 107 of 1882 Act is set out hereunder for ready reference:- 105. “A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfers of such terms”. 106. “(1) in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property”. 107. 107. “a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument”. On a perusal of Section 105 of 1882 Act, it is apparent that “a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer of such terms. One who transfers the right, is called the “lessor”, the transferee is called “lessee”. The price is called “premium” and the money, share, service or other thing is called the “rent”. Section 106 provides that “in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice”. We are concerned with agricultural purpose as the land in question was said to be given for poultry activities. Section 107 provides that “a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument”. The Government and in the instant case, Andaman & Nicobar Islands Administration is not exempted from such provision of granting lease in excess of one year without a registered instrument. In the instant case, neither the Possession Certificate issued to the appellant/petitioner nor the land revenue receipts speak off any lease. The Possession Certificate relied upon by the appellant/petitioner which is not in dispute on the contrary mentions “licence”. No rent or premium has been fixed in case of the appellant/petitioner for being paid on account of any lease. The appellant/petitioner on the contrary had been depositing land revenue for consecutive 5 years. The Possession Certificate relied upon by the appellant/petitioner which is not in dispute on the contrary mentions “licence”. No rent or premium has been fixed in case of the appellant/petitioner for being paid on account of any lease. The appellant/petitioner on the contrary had been depositing land revenue for consecutive 5 years. The question of paying the land revenue in case of a lease by a lessee is unusual. If the lessee has to pay the land revenue then the same has to be stipulated as a condition of the lease in the lease deed. Since there is no written document which specifies payment of land revenue during the tenure of lease by the lessee, it is difficult to accept that a lease had been granted to the appellant/petitioner for 5 years where the lessee is to pay land revenue. This view is further emboldened with the fact that no registered document was executed when it is admitted by the respondents that the land was given under lease for 5 years. Furthermore, no premium or lease rent had been demanded by the respondents (lessor) for the lease. The only ground by which, the respondents have tried to demonstrate or establish that the land was given to the appellant/petitioner on lease is the recording in the remarks column of Khasra Register. The said Khasra Register although is an official document maintained a usual course but was or still is in the custody of the respondents. Any recording in the remarks column without being corroborated by any other evidence either documentary or circumstantial cannot fasten the obligation of lease on the appellant/petitioner. This is more so because at no point of time either through a document or communication between 1987 and 1991, the appellant/petitioner was informed that he is holding the land under a lease for 5 years. Licence on the other hand, is defined under Section 52 of the Indian Easements Act, 1882. Section 52 of the said Easements Act is set out hereunder for ready reference. 52. “Licence” Defined. Licence on the other hand, is defined under Section 52 of the Indian Easements Act, 1882. Section 52 of the said Easements Act is set out hereunder for ready reference. 52. “Licence” Defined. – Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence”. On a reading of the definition of licence in the said regulation in the context of Section 52 of the Easements Act, 1882 it is clear that a licence was granted to the appellant/petitioner for a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, without creating any other interest. In the land in question, the appellant/petitioner was given the right to carry on agricultural and poultry activities without there being a transfer of interest as in the case of lease. Since the matter pertains to the Union Territory of Andaman and Nicobar Islands, one should not lose sight of its historical and socio-economic conditions. There has been settlers in the Government land much prior to the independence which has continued for years even thereafter. In fact, regulations have been made in exercise of powers under Article 240 of the Constitution of India with the aim to pass on the benefits of possessory rights to the settlers who are actually unauthorized occupants of Government land within a legal framework. The Andaman & Nicobar Island administration had floated a scheme called as 1966 Scheme vide letter no. 111-5/66-G Dated 07.09.1966. The unauthorized occupants of Government land uptil 31.12.1961 were under the ambit of the 1966 Scheme. A further scheme was introduced called the 1978 Scheme under which unauthorized occupants of Government land uptil 31.12.1978 were taken into account. The Hon’ble Supreme Court had in fact, passed several orders involving settlement in and/or encroachment on Forest land in Andaman and Nicobar Islands. The Hon’ble Supreme Court had even directed the administration to grant alternative land to such encroachers of forest land to pre-1978 encroachers of forest land. The Hon’ble Supreme Court had in fact, passed several orders involving settlement in and/or encroachment on Forest land in Andaman and Nicobar Islands. The Hon’ble Supreme Court had even directed the administration to grant alternative land to such encroachers of forest land to pre-1978 encroachers of forest land. In the instant case, apart from the facts and legal position which persuades us to hold that the appellant/petitioner is a licensee, we also think that benefit of being in possession by holding a valid possession certificate issued by the Competent Authority with the nomenclature “license” inserted therein should also be given to the appellant/petitioner by holding him to be a licensee by drawing analogy from the schemes and the orders passed by the Hon’ble Supreme Court with regard to pre-1978 encroachers of Government forest land. In the aforesaid facts and circumstances, on a scrutiny of the documents, the chain of events and the relevant provisions of law, we are of the opinion that the land was given to the appellant/petitioner on licence which is not for any specified period but only to carry out agricultural and poultry activities. The appeal, therefor, stands allowed. The writ petition in connection whereof, the appeal arises is also allowed. The petitioner is entitled to the reliefs claimed in the writ petition. Order:- We, therefore, set aside the order impugned dated 3rd May, 2024 passed in WPA 16 of 2022 as also the order of the learned Lieutenant Governor, Andaman & Nicobar Islands dated 21st October, 2021 and further direct the Andaman & Nicobar Islands administration to regularize the appellant/petitioner’s licence by allowing the appellant/petitioner to deposit the land revenue from 1992 to 2024 within four months from the date of this order and further permit the appellant/petitioner to continue to pay the land revenue till the appellant/petitioner continues to remain as a licensee. The appellant/petitioner’s possession till he continues to be a licensee shall also not be disturbed in any manner whatsoever. This will, however, not prevent the administration from taking steps to terminate the appellant/petitioner’s licence by following due process of law. The Appeal and the Connected Application being CAN1 of 2024 are accordingly disposed of. Arindam Mukherjee, J. - I agree.