LAKSHMI KANTAM Vs. LIEUTENANT GOVERNOR & OTHERS

JUDGEMENT

(1.) This mandamus appeal is directed against the judgement and order dated April 03, 2017 passed by a learned Single Judge of this Court in W.P. No.094 of 2016. By the impugned order, the learned Single Judge rejected the writ petition filed by the present appellant challenging the order dated January 13, 2015 passed by the respondent No.3 thereby, rejecting her representation for allotment of an alternative plot of land.

(2.) Briefly stated, the facts relevant for deciding the present appeal are as follows:

(3.) By a registered sale deed executed by one Smity Sadhu, in the year 1973 the appellant purchased a house site bearing survey No. 2754 situated at Dugnabad, comprising land area 340 sq. mtrs. (hereinafter referred to as "the said land"). Thereafter, the appellant constructed a house on the said site but, according to her, in the year 1978 she was unable to repair the said house due to an encroachment made by one Shri Abdullah Khan. The appellant approached the Deputy Commissioner and the Revenue Department to settle the dispute with regard to encroachment of her property by the said Shri. Abdullah Khan or to allot her an alternative site at Aberdeen. In an inquiry, the Revenue Department found that before the appellant purchased the said land one Jogin Singh had constructed his house on the said land and, as such, it had no jurisdiction to settle the dispute of encroachment of the petitioner's land. The Revenue Department however, observed that if the appellant's request for allotment of an alternative land is considered, an area of 340 sq. mtrs. in the same village may be allotted to her in lieu of said land. Initially the Revenue Department allotted a plot of land comprising of 340 sq. mtrs. situated at Dugnabad village was allotted to the petitioner as an alternative land, but later it was found that the same had already been allotted in favour of the Education Department. Subsequently, the petitioner was offered an alternative land at Dugnabad village but the same was also found to have earlier been handed over to the Municipal Board. According to the appellant, she was subsequently offered an alternative land comprising an area of 340 sq.mtrs. situated at Phoenix Bay but, she could not obtain possession of the said land and, as such, she made various representations to the concerned respondents including, the respondent No.3 Deputy Commissioner for allotment of alternative land. The last of such representation, as disclosed in this writ petition was made by the appellant to the Lieutenant Governor, on February 23, 1996. In the said representation before the Lieutenant Governor, the appellant categorically stated that after the retirement of her husband there is no shelter for her family and children and, as such, her case for allotment of alternative land may be considered sympathetically. Since she did not receive any response from the Lieutenant Governor, in the year 2009 the petitioner filed a writ petitioner, being W.P. No. 936 of 2009 before this Court. By an order dated June 11, 2009 a learned Single Judge of this Court disposed of the said writ petition by directing the Deputy Commissioner to implement the decision of allotment of land, if taken, taking note of the present appellant's said representation dated February 23, 1996, which was annexed as annexure P-16 to the writ petition. Thereafter, the respondent No.3, Deputy Commissioner held a hearing which was attended by the petitioner. The respondent No.3 also caused an inquiry through the respondent No. 4, Tehsildar to find out the record position, as well as field position. After obtaining the inquiry report from the Tehsildar the respondent No.3 found that the present appellant through a registered sale deed purchased the said land comprising land area of 340 sq. Mtrs. from Smity Sadhu and the same was mutated in the year 1975. The respondent No.3 further found that in the year 1997, by a registered sale deed the present appellant sold 80 sq. mtrs. of the said land comprising to one Shri. L. Chandran, the said purchaser after mutating his name is in possession of 80 sq. mtrs. of the said land and the remaining area of the said land is under occupation of Shri Jogin Singh and another encroacher. The respondent No.3 held that in the instant case it is the present appellant who is purchaser of the said land and before executing the sale deed, original tenant must have put her in possession of the said land and she cannot put any blame on the revenue authorities. According to the respondent No. 3, apparently the present appellant was not given wrong possession of the survey plot No. 2754 as in the year 1997 she sold a portion of the subject land to a third party. Therefore, the respondent No.3 held that pursuing the proposal of the present appellant for allotment of alternative land for entire 340 sq. mtrs. of land does not arise. On these findings by order dated October 26, 2009 the respondent No.3 held that the request of the present appellant for allotment of an alternative plot of land cannot be considered. Challenging the said order dated October 26, 2009 the appellant filed a writ petitioner being W.P. No. 679 of 2012 before this Court. The respondent contested the said writ petition. By a judgement and order dated June 16, 2014 a learned Single Judge of this Court set aside the order dated October 26, 2009 passed by respondent No.3 and disposed of the writ petition by directing the respondent No.3 to consider the petitioner's representation dated February 23, 1996 by granting an opportunity of hearing to her and by passing a reasoned order. In terms of the said order dated June 16, 2014 the respondent No.3 held a fresh hearing which was attended by the appellant. After considering the records, including the report of the respondent No.4 Tehsildar, the respondent No.3 found that the husband of the appellant namely Shri. V. Suryanarayana has already been allotted land bearing Survey No. 21/3/1, measuring an area 150 sq. mtrs. in Block No. 4 A situated at Haddo village in Port Blair Tehsil under Pre 1978 Encroachment Regularisation Policy and, as such, present appellant's family has already availed the benefits of allotments of land. The respondent No.3 held that the present appellant is not an allottee of said land, she herself purchased the said land from the original owner and, as such, she cannot claim an alternative land being allotted by the Revenue Authority in lieu of her purchased land. According, to the respondent No.3 before the present appellant purchased the land, she could have verified the land whether the entire area of 340 sq. mtrs. is physically available or not and as she accepted a less area from her vendor Smity Sadhu, the present appellant cannot now claim any legal right against the Revenue Authorities or the other respondents for allotment of alternative land in lieu of her purchased land and dispossession is not a ground for allotment of alternative land. According to the respondent No.3, apparently the present appellant was not given wrong possession as she sold a portion of the subject land, as late as in the year 1997 to a third party and therefore, she cannot pursue any claim for allotment of alternative plot of land for entire 340 sq.mtrs. of land. With these findings, by order dated January 13, 2015 the respondent No. 3 rejected the claim of the present appellant for allotment of an alternative plot of land comprising 340 sq. mtrs. Challenging the said order dated January 13, 2015 the petitioner filed a third writ petitioner being W.P. No. 094 of 2016 before this court. The said third writ petition was contested by respondents and they filed their affidavit-in-opposition before the learned Single Judge. The appellant also filed her affidavit-in-reply. By a judgement and order dated April 3, 2017 a learned Single Judge of this court held that there is no decision of allotment as present appellant's husband was given the benefit of Pre 1978 Encroachment Regularisation Policy and since she herself purchased the said land the writ petitioner is not entitled to any relief for allotment of alternative plot of land. On these findings the learned Single Judge dismissed the writ application with costs assessed Rs. 50,000/-. As mentioned earlier, it is the said judgement and order passed, which is the subject matter of challenge in this appeal.