LT. GOVERNOR Vs. ABDUL SALAM

JUDGEMENT

(1.) This is an appeal against the judgment dated 16th Dec., 1994 passed in C. O. 105(W) of 1994 by the learned Trial Judge, Port Blair allowing the writ application filed by the writ petitioner-opposite party and setting aside the order of eviction passed by Tehsildar on 9th June, 1994 as well as the Order passed by the Sub-Divisional Officer dated 8th Nov., 1994. The learned Trial Judge further directed the appellant to forthwith restore the status-quoanti and not to disturb the writ petitioner-opposite party's possession in respect of the land in question until the High Power Committee considers the application of the writ petitioner for regularisation in question and pay to the writ petitioner a sum of Rs. 75,000.00 towards the cost for reconstruction. Further the Registrar of this Court had directed to take steps to prosecute the Tehsildar for having given false evidence of oath.

(2.) The facts of this case shortly may be stated as follows:-

(3.) In our view to move the writ court the condition preceucm a person must have a legal right and or to enforce the legal right and or to compel the respondent to discharge the legal duties which the authorities concerned has been entrusted in this matter. The learned Judge has held that the writ petitioner-opposite party's application for regularisation had not been dealt with and disposed of and as such he could not be evicted from the and in question. In our view the Learned Trial Judge was in taking such view. The unauthorised occupants have no legal right to regularisation unless he makes out a case of regularisation strictly in accordance with the Scheme framed in this behalf and only after he is able to establish that he has fulfilled all the conditions laid down for regularisation, his case is bound to be considered In the facts and circumstances case of the petitioner for regularisation could not be made and not maintainable because of the issuance of a show cause notice against the writ petitioner-opposite party in the year 1983 whereupon a proceeding was drawn up and categorically held by the authorities concerned that the writ petitioner was made an encroachment of land only.on 3rd Nov., 1982 and it is the claim of the petitioner-opposite party that after demolision made in respect of the said pan shop which was demolished after drawing up a proceeding, he again reoccupied that area and made further encroachment and thereon made some constructions. Accordingly, the petitioner's own case is that he had made this encroachment after 1983 and accordingly he does not come within the category of unauthorised occupants prior to 31st Dec., 1978. Further from the records it appears that the petitioner also admitted that the structure was also demolished by the Tehsildar in 1983. It may be mentioned that the petitioner has stated at different times and at different places about the time when he has encroached the land and also the area of encroachment which were inconsistent. The determination made by the authorities concerned in the year 1983 having reached its finality, is binding upon the writ petitioner-opposite party and in that view of the matter it is not open to the writ petitioner to contend that he was in occupation of the land from 1970, 1974 or 1976.1 Further it is also clear to us that the petitioner is guilty of suppression of material facts in the writ petition. In the writ petition the petitioner has suppressed the fact that he was evicted by drawing up a proceeding in the year 1983. In the writ petition he was only stated that a proceeding was drawn up and a show cause notice was issued but ultimately on getting reply, the Tehsildar did not proceed further and the petitioner continued to stay on the said land with his family members with the permission. This statement made by the writ petitioner in the writ petition was contrary to The statement made by him before the Tehsildar concerned in the impugned proceedings and that in the affidavit in reply he had admitted that the statement made by him before Tehsildar was correct. To view of such admission made by the writ petitioner-opposite party in the affidavit in reply must be held that the statement made in the writ petition to be incorrect and admittedly the writ petitioner-opposite party is guilty of suppression of material facts and he had made those statement at the total sacrifice of truth. We are of the view that the Learned Trial Judge had clearly erred in holding that the possession of the petitioner was somewhat akin to a purchaser who has taken possession of land in part performance of an agreement for sale under Sec. 53A of the Transfer of Property Act provides that if there was an agreement for sale of a land and if the purchaser is paid the consideration money and the seller has put the purchaser in possession of land, in that event the doctrine of part performance is envisaged in 53A could be invoked. In the facts and circumstances of this case that the doctrine of part-performance is wholly in-applicable and cannot be invoked at all In any event in favour of a rank tresspasser of Govt, land the doctrine of part performance could not be invoked and the Court cannot respect and protect the possession of a rank tresspasser of Govt land. The writ .Court cannot interfere with the finding of facts made by the authorities unless the findings are perverse. In this case the findings of facts made by the Tehsildar affirmed by the appellate authority could not be interfered with by the Learned Trial Judge. In this instant case admittedly the writ petitioner-opposite party was an unauthorised occupation of the Govt, land in contravention with the provisions of law and that he had been evicted in the year 1983 by drawing up a proceeding in accordance with law and again another proceeding was drawn up in the year 1994 and accordingly his own admission the petitioner is an unauthorised encroacher in 1983 and is Dot entitled to be regularised and in the facts and circumstances of this case. An unauthorised occupant cannot come within the scope and ambit of the regularisation scheme which was promulgated by the authorities concerned on 17th Aug., 1987 unless he fulfilled the conditions and admittedly the petitioner-opposite party could not be considered to bean unauthorised occupant or encroacher of land prior to 1979 and continued in occupation since then. Accordingly, we are of the view that the writ petitioner-opposite party was not entitled to any relief on the writ application and that there is no question of restoration of the possession of land back to the petitioner, who was admittedly a rank tresspasser.