Sanjib Banerjee, J.
1. The provisions of two regulations forming part of the same principal set of regulations in force in these islands, and apparently overlapping, fall for consideration in this appeal.
2. But before the legal issue, the facts need first to be noticed. The appeal is directed against an order of June 16, 2006 by which the appellant's challenge to an order passed by the Secretary (Revenue) by way of a writ petition was found to be without any merit. The Secretary (Revenue) had allowed the fifth respondent's appeal from an order passed by the Sub-Divisional Officer who had upset the decision-made by the Tehsildar.
3. The appellant, the fifth respondents and one Patrick George (who ought to have been impleaded in the writ as he was a party to the proceedings before the Secretary) are sons of late Wilson George. Edmund, the appellant, Godwin, the fifth respondent, and Patrick came to inherit their father's land and applied for partition thereof. The Secretary, (Revenue) records in his order that the property was subdivided and survey numbers were allotted in respect of 89 sq.m of land to each of the three. In February, 2003, the fifth respondent complained to the Deputy Commissioner that the appellant had constructed an STD Booth in the setback area of the land standing in the name of the fifth respondent. After the matter travelled from the Deputy Commissioner to the Tehsildar and back, the superior authority required the Tehsildar, Port Blair, having jurisdiction over the land in question to take up the matter. The Deputy Commissioner's reference of the matter to the concerned Tehsildar was on the following lines:.Ld. Counsel Shri Bhoop Singh and Shri Elango are present. The petition filed by ld. Counsel for Shri Godwin George is kept on record.
Both.... Counsel admitted that this is the case for dispossession, which is to be dealt Under Section of A&N; Islands LR and LRR 1966. Report of Tehsildar also reveals that side set back area of Shri Godwin George was illegally occupied by Shri Edmond George. Therefore, agreeing to the plea of the ld. Counsel, this case being a case of dispossession is remanded to the Court of Tehsildar with the direction to dispose of the case as per provision of the Law.
4. What was originally a complaint of violation of the relevant rules relating to setback upon construction being made on a land, stood converted to a case of dispossession.
5. Following such directions and a petition filed by the fifth respondent of August 11, 2003, the Tehsildar registered a case being R.C. No. 1785 of 2003. The recording of the admission by the appellant of dispossession was challenged in writ proceedings before this Court and the effect of the purported admission was annulled by an order made therein. Both the parties were heard and the Tehsildar found that the appellant was in unauthorized occupation of 12 sq.m of land that belonged to the fifth respondent. The Tehsildar, in exercise of the powers that he understood Regulation 98 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 (the said Regulations) conferred on him, directed the appellant to vacate such 12 sq.m of land by his order of March 9, 2004. The appellant carried such finding and the direction given consequent thereupon, in appeal to the Sub-Divisional Officer.
6. The Sub-Divisional Officer set aside the Tehsildar's finding and direction on his reading that the disputes could not be dealt with under Regulation 98 of the said Regulations. To boot, he concluded that Regulation 161 could also not be applied. The Sub-Divisional Officer's approach to the matters in issue and his interpretation of the said Regulations reveal that his understanding was that Regulation 161 and Regulation 98 were alternative sources for the same authority granted unto the Tehsildar to decide a matter as the one at hand. It is such interpretation, and one that we increasingly find in orders passed by authorities under the said Regulations prefaced with the words 'in exercise of the powers under Regulation 98/161', that engages us in this appeal.
7. To complete the chronology of the proceedings, the Secretary reversed the order of the Sub-Divisional Officer and restored that of the Tehsildar but on grounds in addition to the ones cited by the Tehsildar. The Secretary found that Regulation 161 was equally applicable as, in his view, the effective date of the act of dispossession was the date of the STD booth being let out by the appellant rather than the date of the commencement of wrongful possession and the construction of booth thereon. The appellant maintained that the construction was completed in 1998 but the Secretary did not think that such allegation of the appellant merited any consideration.
8. The learned Single Judge did not find any error in the decision-making process adopted by the Secretary and found no jurisdictional error having being committed. The Secretary's order was not interfered with, though it was observed that Regulation 98 of the said Regulations permitted the Tehsildar to receive an application from an eligible party for him to take action thereunder and was not confined to suo moto exercise of authority thereunder.
9. The said Regulations came to be made under Article 240 of the Constitution of India. The sanctity of the said Regulations have to be seen in the context of Article 240(2) of the Constitution which then stood as:
Article 240(2) Any Regulation so made may repeal or amend any Act made by Parliament or any existing law which is for the time being applicable to the Union territory and, when promulgated by the President, shall have the same force and effect as an Act of Parliament which applies to that territory.
10. The expression 'any existing law' appearing in Article 240(2) was subsequently substituted by the expression 'any other law' by the Twenty-seventh Amendment in 1972. But nothing turns on such amendment.
11. The said Regulations were promulgated by the President 'to consolidate and amend the law relating to land revenue, powers of the revenue officers, rights and liabilities of the holders of land, land tenures and other matter relating to land, in the Union Territory of the Andaman and Nicobar Islands'.
12. The provisions under the said Regulations are arranged in 17 chapters though each of the regulations is curiously called a section. That has probably been done as a reminder of the more exalted status that the said Regulations enjoy than other commonplace, and more plebian, regulations. Of the various provisions not appearing at the first flush to be relevant to the immediate context, the one found in Regulation 204, may help setting down the parameters of our present endeavour:
204. No suit or other proceeding shall, unless otherwise expressly provided in this Regulation, lie or be instituted in any Civil Court with respect to any matter arising under and provided for by this Regulation.
13. The instinctive urge to require all civil disputes to be retained within the confine of the Civil Court and the procedure laid down in the Code of Civil Procedure, 1908, needs to be tempered by Regulation 204 and the primacy of the said regulations as warranted by Article 204(2) of the Constitution. Ordinarily, if a dispute is of civil nature, the lowest Civil Court having authority to receive such matter and exercising territorial jurisdiction in respect thereof, is the forum to adjudicate upon such matter. There are notable exceptions, carved out in several special statutes, other than those that increasingly continue to slip out of the Civil Court's domain to reach specialized and so-called expert. Tribunals. For one, the Companies Act, 1956 empowers the Company Court to receive an creditor's claim against a debtor company, subject, however, to the condition that the claim must be indisputable. Similarly, and notwithstanding Regulation 204 in the said Regulation, sundry disputes inherently civil in nature can be agitated before authorities under the said Regulations but the power of the Civil Court to receive such matters is not completely denuded. The bar under Regulation 204 is relaxed expressly in several provisions including in Regulation 202(7) of the said Regulations.
202.(1) Any person who unauthorisedly takes or remains in possession of any unoccupied land or abadi may be summarily ejected by order of the Tahsildar and any crop which may be standing on the land and any building or other work which he may have constructed thereon, if not removed by him within such time as the Tahsildar may fix, shall be liable to forfeiture.
(2) ...
(3) ...
(4) ...
(5) ...
(6) ...
(7) No order made under Sub-section (1) shall prevent any person from establishing his right in a Civil Court.
(8) ...
14. But Regulation 202(7) applies to unoccupied land, whereas the provisions of Regulation 98 could apply to occupied or unoccupied, allotted or unallotted land and Regulation 161 applies to land held by a tenant. Regulation 98 is found in Chapter IX of the said Regulations, under the heading, 'Boundaries, Boundary Marks and Survey Marks.'
15. The ten regulations, Regulation 96 to Regulation 105, bunched under that chapter relate to demarcation of boundaries, survey numbers, sub-divisions thereof and plot numbers and provisions incidental thereto, to maintain the sanctity of the boundaries whether between villages or survey numbers or plot numbers. For Regulation 98 to be understood, the two preceding regulations and Regulation 101 need also to be noticed. The relevant provisions are as follows:
96.(1) The boundaries of all villages shall be fixed and demarcated by permanent boundary marks.
(2) The Chief Commissioner may, in respect of any village, by notification, order that the boundaries of all survey numbers or plot numbers shall also be fixed and demarcated by boundary marks and where such boundaries have been fixed and demarcated by boundary marks it shall be lawful for the Chief Commissioner to assess all charges incurred thereby on the holders of the survey numbers or plot numbers, as the case may be, or others having an interest therein.
(3) Such boundary marks shall, subject to the provisions hereinafter contained, be of such specification and shall be constructed and maintained in such manner as may be prescribed.
(4) Every holder of land shall be responsible for the maintenance and repair of the permanent boundary and survey marks erected thereon.
97. All disputes regarding boundaries of village, and boundaries of survey numbers and plot numbers where such boundaries have been fixed under the provisions of Section 96, shall be decided by the Deputy Commissioner after local enquiry at which all persons interested shall have an opportunity of appearing and producing evidence.
98.(1) When a boundary has been fixed under the provisions of Section 96 the Tehsildar may summarily reject any person who is wrongfully in possession of any land which has been found got (sic, not) to appertain to his holding or to the holding of any person through or under whom he claims.
(2) Where any person has been ejected from any land under the provisions of Sub-section (1), he may, within a period of one year from the date of ejectment, institute a civil suit to establish title thereto:
Provided that the Tehsildar, or any other revenue officer shall not be made a party to such suit.(3) The Tehsildar may at any time after the passing of decree in the civil suit, if any, make an order for redistribution of land revenue which, in his opinion should be made as a result of the decree and such redistribution shall take effect from the beginning of the revenue year following the date of the order.
101. Where no order has been made by the Chief Commissioner under Sub-section (2) of Section 96 the Tehsildar or any other revenue officer specially empowered in this behalf by the Chief Commissioner may, on the application of any party interested, demarcate, the boundaries of a survey number or of a sub-division or of a plot number and construct boundary marks thereon and recover the cost of such demarcation and construction from the applicant.
16. Regulation 161 finds place in chapter 13 which is entitled 'Tenure holders.' Such chapter details the various rights of the many classes of tenants that the said Regulations create. In addition to the rights of such tenants or tenure-holders, the diverse right or grants enjoyed by classes of persons in respect of land under the provisions of the corresponding Regulations of 1926 that stood repealed upon the said Regulations coming into effect in 1966, have been preserved in this chapter as have certain other rights granted by some banking and related laws. Regulation 159 restricts the instances of, and imposes conditions on, transfer by any tenant of his interest in such land. Regulation 160 lays down that any transfer in derogation of the restrictions and conditions contained in Regulation 159 would invite forfeiture of the relevant land by the Government. It is in such context that Regulation 161 next appears and provides the following:
161.(1) If after the commencement of this Regulation any tenant is disposed of any lands held by him otherwise than by process of law, he may within two years from the date of such dispossession, apply to the Tehsildar for his reinstatement in such land.
(2) On receipt of an application under Sub-section (1), the Tehsildar shall, after making an enquiry into the respective claims of the parties, pass order on the application and when he orders the restoration of possession to the tenant, put him in possession of the land.
(3) The Tehsildar may, at any Stage of the enquiry under Sub-section (2), pass an interim order for delivery of possession of the land to the applicant, if he finds that the applicant was dispossessed by the opposite party within six months prior to the date of submission of the application under Sub-section (1) and if possession is not delivered to the applicant, the Tehsildar shall cause the opposite party to be ejected.
(4) When an interim order has been passed under Sub-section (3), the opposite party may be required by the Tehsildar, to execute a bond for such sum as he may be deem fit for abstaining from taking possession of the land until the final order is passed by him.
(5) If the person executing the bond under Sub-section (4), is found to have entered into, or taken possession of the land in contravention of the bond, the Tehsildar may forfeit the bond in whole or in part and may recover such amount from such person as an arrear of land revenue.
(6) If the order passed under Sub-section (2) is in favour of the applicant, the Tehsildar shall also award a reasonable compensation to be paid to the applicant by the opposite party:
Provided that the amount of compensation shall not exceed ten times the land revenue payable in respect of the land for each year's occupation.(7) Any compensation awarded under this section shall be recoverable as an arrear of land revenue.
17. The last four sub-regulations under Regulation 161 relate to matters consequent upon the Tehsildar having made an interim or final order. The substantive authority to entertain a complaint is found in Sub-section (1) and the procedure to be adopted for the determination thereof is found in sub-regulation (2). Sub-regulation (3) is a special provision carved out from matters covered by sub-regulation (1) subject to the condition as to time as contained therein. The combined effect of sub-regulations (1) and (2) gives the Tehsildar the jurisdiction to right the wrong complained of upon the right and the wrong having been established.
18. Regulation 161(1) imposes, as we see, three conditions before an applicant can obtain an order thereunder. An applicant has first to demonstrate that he is a tenant, he then has to prove dispossession -- this requires the ancillary condition of possession being shown before dispossession can be alleged; and, of the dispossession being within a period of two years prior to the date of the application before the Tehsildar.
19. The Tehsildar is called upon to adjudicate upon the applicant's title, his having been in possession prior to dispossession and as to the time of dispossession. The matters in issue have to be pronounced upon in these summary proceedings on the basis of such enquiry as sub-regulation (2) would permit the Tehsildar to conduct. The first two of the conditions that a suitor before the Tehsildar has to establish, fall exclusively within his domain provided the third condition is satisfied. If the Tehsildar finds the alleged act of dispossession to be ex facie beyond the period of two years immediately preceding the date of the application, he need make no further enquiry into the matter. Only if he is prima facie satisfied that the third condition is met, that he takes upon himself the task of adjudicating the matter. Again, it is the third test, that of the date of alleged dispossession, that has first to be ascertained before the Tehsildar can consider the question as to whether the dispossession was in breach of the legal right of the applicant or a dispossession which the respondent was entitled to by his legal rights. The first and second tests cover the legal rights of the parties and require an adjudication on similar lines as would be undertaken by a Civil Court. It is only upon the third test having being concluded in favour of the applicant that the matters covered by the first two tests would, by reason of Regulation 204 go beyond the pale of the Civil Court. This decision of the Tehsildar as to the third test or as to the other tests is subject to correction in appeal and second appeal under Regulation 28 of the said Regulations and the related provisions in Chapter IV thereof. The final adjudication at the last stage of the proceedings, or even earlier, is open to judicial review under Article 226 of the Constitution.
20. When the Tehsildar finds that the applicant is unable to first pass the third test, the applicant is not left without any remedy. The applicant then has the regular Civil Court to fall back on. Nothing in the said Regulations bars a tenant who sleeps over his rights for two years after the date of dispossession, to seek redress of his grievance. The doors of the Civil Court are still ajar for him, subject, however, to the laws of limitation. It is equally conceivable that the Tehsildar is of the view that he lacks the wherewithal to authoritatively pronounce upon the third test in the summary procedure available to him. He may then pronounce an inconclusive finding on the third test and the applicant may either carry such decision in appeal or found his claim by way of a suit before the appropriate Civil Court. The scope for judicial review is also, always open.
21. What is not open to the Tehsildar is to avoid requiring the applicant to cross the third test by looking elsewhere in the said Regulations to seek support to conduct the adjudication nonetheless. A complaint in the nature of that contemplated by Regulation 161(1) cannot be proceeded with the aid of the authority vested in the Tehsildar under Regulation 98. That is not to say that the mere making of an application under Regulation 161(1) would debar the applicant from invoking Regulation 98. It is not to suggest also that an application intituled as one under Regulation 161(1) would preclude the applicant from taking the benefit of Regulation 98 if he is otherwise entitled or the nature of the complaint so warrants. Regulation 98 and Regulation 161 operate in slightly different fields.
22. Regulation 98 comes into, play subject to Regulation 96 or Regulation 101, upon a boundary being transgressed. An act of dispossession ipso facto involves transgression of the boundaries of the tenant, but it will no necessarily be a transgression of boundary as the one contemplated in Regulation 98. One may dispossess another by retaining the boundary limits of the land trespassed into or encroached on. Regulation 98 recognizes the sanctity of the boundaries or divisions and though the expression 'wrongfully in possession of any land' is found therein, that wrongful possession has to be upon a breach of the boundary that has been established by due process of law.
23. Such due process of law is recognized in Regulation 96 which contemplates a notification being issued by the Chief Commissioner (and now the Administrator or ex-officio the Lieutenant Governor) and by Regulation 101 which covers situations where no notification has been made by the Administrator under the Regulation 96(2). There is a measure of formality that has to be complied with whether under Regulation 96 or under Regulation 101, before a boundary is sanctified and a Tehsildar is empowered to proceed under Regulation 98. It is upon such sanctification that the Tehsildar assumes suo moto jurisdiction under Regulation 98 to preserve the purity of the boundary formalized under Regulation 96 or Regulation 101. Doubtless that the suo moto authority given to the Tehsildar can be excited by a tenant complaining of his boundary having been transgressed, but the authority under Regulation 98 cannot be exercised unless Regulation 96 or Regulation 101 has been complied with.
24. The nature of the power that the Tehsildar enjoys under Regulation 98 has also to be seen in the light of Regulation 97. Regulation 97 requires the Deputy Commissioner to adjudicate upon any dispute regarding the boundary of a village, a survey number or a plot in cases where boundaries have been fixed under the provisions of Regulation 96. It is of some consequence that though Regulation 97 gives the Deputy Commissioner the authority to decide such disputes, there is no mention of how the decision rendered upon his adjudication would be executed. This is even more striking as in the said Regulations, in diverse provisions where adjudication is contemplated, there are incidental provisions to give effect to the order passed upon such adjudication.
25. That Section 98 immediately follows the provision conferring jurisdiction on the Deputy Commissioner to adjudicate upon boundary disputes, would point to the later Regulation to be the mode of execution of the order passed under Regulation 97. Such view is further strengthened by the words 'the Tehsildar may summarily eject any person who is wrongfully in possession of any land which has been found not to appertain to his holding....' (The word 'not' is wrongly printed as 'got' in all the copies of the said Regulations that have been placed before us.)
26. Regulation 98, therefore, does not permit adjudication of boundary disputes as the same is covered under Regulation 97, and before a superior authority. Regulation 98 as it appears in the said Regulations, and in the light of the expression 'has been found' contained therein, leads to the inescapable conclusion that whatever else such provision may imply, in addition to being the process for executing the order of a superior forumpassed under Regulation 97, it is not a power that has to be read as an alternative to the one contained in Regulation 161. Since the said Regulations have statutory force and have overriding effect in terms of Article 240(2) of the Constitution, they may be read as a statute. If common law rights or other statutory rights are abridged, as appears to be done by said Regulation, they need to conform to the principles applicable to statutes and are to be interpreted by the rules applied therefor.
27. Courts would be loathe to accept that two different provisions contained in the same statute, but requiring varying tests, could be invoked for the same complaint and for the same relief. The two provisions may overlap in some areas, as Regulations 98 and 161 would, but one cannot be the substitute for the other. The rigours of Regulations 161 cannot be wished away by switching over to Regulation 98, even if the precondition under Regulation 96 or Regulation 101 were met. If a Tehsildar is unable to decide the third test under Regulation 161(1), he cannot conveniently bypass crossing the mandatory threshold to his jurisdiction by taking shelter under Regulation 98. That would render Regulation 161 otiose. The consequence of Regulation 161 being rendered meaningless upon the Tehsildar invoking Regulation 98 instead, would be far-reaching and undesirable. It would imply, for instance, that all complaints by tenants of dispossession were covered by the said Regulations and the tenant or his adversary would have no recourse to the Civil Court.
28. In the instant case, the learned Single Judge noticed the appellant's contention that there was no demarcation of the three pieces of land between the three brothers. The arguments made by the appellant that no notification in terms of Regulation 96 had been issued and no proceedings under Regulation 97 had been initiated, were also recorded. There is no notification under Regulation 96 on record nor has the respondent been able to establish that there was either such notification under Regulation 96 or that steps were taken under Regulation 101 pursuant to an application therefor. In the absence of such facts being established, the Tehsildar could not proceed to assume powers under Regulation 98. It is also undeniable that there was no adjudication in the present case of any boundary dispute under Regulation 97. Such being the state of facts, the complaint of the fifth respondent was necessarily to be seen as one made under Regulation 161. As noticed above, for an application under Regulation 161 to proceed, the third condition has to be complied with. In the absence of it being established in the present case that the fifth respondent's second complaint before the Tehsildar of dispossession by the appellant was within the period of two years preceding such complaint, no further steps could have been taken in the matter. The Secretary clearly committed a jurisdictional error in reversing the decision of the Sub-Divisional Officer and reinstating the Tehsildar's order, though the Sub-Divisional Officer's finding was rather cryptic and unsubstantiated by any cogent reason. The Secretary failed to recognize that the Tehsildar's order was passed in a matter that commenced in right earnest upon his issuing a show cause notice to the appellant under Regulation 161 and that the appellant had shown cause how Regulation 161 could not be invoked. There is nothing on record to suggest that upon the Tehsildar finding Regulation 161 inapposite, and discovering Regulation 98 to be the more appropriate, he issued any further notice. In fact, the Tehsildar's order which he founds on Regulation 98, quotes almost the entirety of the appellant's reply to the notice under Regulation 161. Even so, the Tehsildar did not consider or record as to whether Regulation 96 or Regulation 101 had been complied with or whether, in view of Regulation 97, he had authority to receive or pronounce upon a boundary dispute. In the Secretary's eagerness to supplement the Tehsildar's reasons by consulting records and holding that the individual lands had been demarcated, he overlooked the fact that the appellant had never been called upon to answer any case under Regulation 98. The Secretary did not enquire if the Tehsildar had the jurisdiction to address a boundary dispute, if it was a dispute as to the boundaries of the two brothers' plots. The Secretary's order cannot be sustained and is quashed.
29. The appeal succeeds but, in the circumstances, there will be no order as to costs.
30. The fifth respondent has relied on what he claims to be an admission by the appellant of the act of dispossession and of the fifth respondent being entitled, in equity, to take benefit of such admission. The eighth ground in the memorandum of appeal is placed to substantiate the indisputable character of the appellant's admission as to dispossession of the fifth respondent from a part of the fifth respondent's land. It is not required to go into the effect of such admission, if it is an admission at all. The authorities under the said Regulations were required to act in terms of the said Regulations and in the manner prescribed by the provisions thereof and not otherwise as if in exercise of plenary powers. The fifth respondent cannot incite equitable consideration to gloss over the jurisdictional error committed by the Secretary in finding in his favour. Whatever the consequences of the alleged admission, the fifth respondent is left to take advantage thereof in any proceedings that may ensue.
31. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with all requisite formalities.
Pranab Kumar Deb, J.
32. I agree.