IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

(CIRCUIT BENCH AT PORT BLAIR)

Present:

The Hon’ble Justice Ajay Kumar Gupta

SAT 15 of 2024

Shri A. Alagu

Vs.

The Andaman and Nicobar Administration and Others.

For the Appellant : Mr. K.M.B. Jayapal, Adv.

For the Respondents : Ms. Babita Das, Adv.

Heard on : 18.02.2026

Judgment on : 26.02.2026

Ajay Kumar Gupta, J:

1. The instant second appeal is the exception to the judgment and

order dated 20.04.2018 passed by the Learned District Judge,

Andaman & Nicobar Islands in Title Appeal No. 13 of 2020,

thereby affirming the judgment and order dated 27.11.2020

passed by the learned Civil Judge (Senior Division), South

Andaman District at Port Blair in Title Suit No. 45 of 2023.

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FACTS OF THE CASE

2. The specific case of the Appellant/Plaintiff is that he came to these

islands sometime in 1973 and encroached upon a different

revenue land being Survey No. 1558/P and 1559 situated at

Hoddo Village, measuring an area of 1200 sq.mtrs. and

constructed a Semi-Pucca dwelling house thereon. The Tehsildar,

Port Blair, initiated a revenue case being RC case no. 96/85 in the

year 1985 under section 202 of the Andaman and Nicobar Islands

land Revenue and Land Reforms Regulation, 1966 (in Short ‘the

said Regulation’) against him while he was in possession. Finally,

an eviction order was passed in year 1985, although he could not

be evicted from the actual possession thereof.

3. The revenue authorities issued a license in favour of the plaintiff in

respect of survey No.1558 (old, corresponding to new Survey No.

48/9) against an area of 200 sq.mtrs. of land in the year 1988,

and also entered his name in the Record of Rights (in Short ROR).

It was alleged that the remaining portion of 1000 sq.mtrs. of land

under his occupation was not recognised in his favour, although

he claims that he continues to be in possession by constructing a

permanent structure over there and such than interrupted

possession was continued till 2018.

4. In the year 2018, the proceeding was initiated by the Tahsildar

under section 202 of the said regulation on the basis of complaint

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lodged by some of the residents of the locality against him, alleging

illegal construction and doing illegal commercial activities.

5. Finally, the Tahsildar, Port Blair issued an order dated September

29, 2019 under section 202 of the said regulation, thereby

directing the plaintiff to remove the illegal occupation over the suit

property within October 14, 2019. On receipt of such order, the

plaintiff filed an application before the tehsildar thereby expressing

his intention to file a suit and prayed for stay of operation of the

said order of eviction.

6. Without allowing such prayer, the Tahsildar directed the plaintiff

to remove the illegal occupation on or before Number 4, 2019, by

order dated October 22, 2019, without adherence of the provision

of 202 (8) of the said regulation. According to the petitioner, the

defendants are harassing him and trying to do everything from the

suit property unauthorizedly; as such, he filed the suit for

declaration and permanent injunction restraining the defendants

from interfering with his peaceful possession in the suit property.

7. The trial court was pleased to reject the plaint as the suit is barred

by the provision of section 34 of the specific relief Act read with

section 38 of the said regulation under order VII Rule 11 of the

Code of Civil Procedure filed by the defendant in the suit observing

therein that all and within the Union territory land are vested

absolutely to the government of India. The Tehsildar, being the

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Revenue officer, is vested with the jurisdiction to initiate and pass

an order of eviction of any encroachment land of the Government.

Such power can be exercised as per the regulation 202 of the said

regulation, and the same was drawn by the authority for his

eviction.

8. The Trial Court further held that the provision of the said

regulation, being so, under no circumstances can there be a

decree of injunction in any civil Court thereby restraining the

administration from evicting any encroacher from any government

revenue land, since, such a decree may come in direct conflict with

the provisions engrafted in the regulation.

9. Being aggrieved by and dissatisfied with the said rejection of the

plaint, the appellant preferred an appeal before the District Judge,

Andaman and Nicobar Islands at Port Blair, being Title Appeal No.

13 of 2020. After hearing, the appeal was dismissed on contest on

20.04.2018 without order as to costs. The order dated November

27, 2020, passed in Title suit No. 45 of 2020 by the learned civil

Judge, Senior Division, Port Blair, stood affirmed. Hence, this

Second appeal.

10. At the time of admission, the division bench of this court framed

the following substantial question of law to be decided in this

Second appeal are as under:

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a) Does power under section 204 of the Andaman and Nicobar

Islands land revenue and land reforms regulations, 1996 apply

to a person who occupies beyond the extent of 200 sq. mtrs. of

land in an urban area?

b) Can a plaint be rejected in a summary form under order VII rule

11 of the Code of Civil Procedure when Regulation 38 and

Regulation 202 (7) of the Regulations of 1966 permits and

unauthorised occupant of urban land to establish a right to the

extent of land encroached by him and seek regularisation of the

same in his favour?

c) Is the prayer for declaration made by the appellant in the plaint

not maintainable as found by the two courts below?

d) Does the circular dated August 17, 1987 have the force of law to

restrict encroachment and occupation of the government land

by a person to 200 Sq. mtrs in an urban area?

e) Could the courts below arrive at a conclusive finding against

the petitioner as regards his claim in the suit in a summary

manner under order VII rule 11 of civil procedure without a

proper trial on evidence?

SUBMISSIONS ON BEHALF OF THE APPELLANT

11. Mr. K.M.B. Jaypal, learned counsel appearing on behalf of the

Appellant/Plaintiff submits that the First Appellate Court, without

going into the merits of the case came to conclusion that the Trial

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Court has rightly rejected the plaint though the legal provision of

the said regulation with rules framed thereunder recognise the

right of encroachers over Government Revenue Land and to

establish their such right lawfully by instituting the suit under the

provision of regulation 202 (7) of the said regulation with rules

framed thereunder.

12. Learned counsel further submitted that the plea of res-judicata

cannot be decided in an application filed under order VII rule 11

for rejection of the plaint. According to him res- adjudicate is an

issue to be decided in trial and cannot be summary decided in an

application to reject plaint. He has placed reliance of a decision of

the Hon’ble Supreme Court passed in the case of Pandurangan

Vs T.Jayarama Chettiar And Another

1 to buttress his

contention.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS

13. Per contra, Ms Das, learned counsel appearing on behalf of the

Respondents/Defendant, vociferously argued and submitted that

the First Appellate Court examined the facts and law applicable in

this regard and did not find any ground warranting interference

with the judgment of the Trial Court.

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(2025) 10 SCC 279

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DISCUSSION, ANALYSIS AND CONCLUSION OF THIS COURT

14. In light of the submissions made by the parties and on perusal of

the judgment and decree passed by the First Appellate Court dated

20.04.2018, it appears while considering the judgment of the Trial

Court, the First Appellate Court held that the Trial Court has

rightly rejected the plaint under Order VII Rule 11 of the Civil

procedure code as there is specific bar in the jurisdiction of the

Civil Court under Section 204 of the said regulation. When any

specific authority given special power to deal with the dispute

under special regulation. Section 38 and 202 (6) are also very clear

on this issue.

15. It is admitted by the plaintiff that out of 1200 sq. mtrs. of land of

Islands being encroached upon by the plaintiff, only 200 sq. mtrs.

of land was regularised in his favour in the year 1988, and the

remaining 1000 sq. mtrs. of land has not yet been regularised. The

appellant also makes it very clear that on twice occasions two

separate proceedings were initiated by the Tahsildar ponders

section 202 of the said regulation, and thereby and thereunder

directed the plaintiff to hand over the property, which is under his

unauthorised occupation. One such order was made long back in

the year 1985. Even after passing such direction, the plaintiff

could not be evicted from the encroached land. Subsequently, the

revenue authorities issued a license in favour of the plaintiff in

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respect of survey No.1558 (old, corresponding to new Survey No.

48/9) against an area of 200 sq. mtrs. of land in the year 1988,

and also entered his name in the Record of Rights (in Short ROR).

16. Later, a second proceeding was initiated on the basis of complaint

lodged by the local residents regarding his illegal occupation and

illegal commercial activities, and direction was passed in the year

2019 for his eviction from the other portion of land under his

occupation. It is, therefore, admittedly clear from the averments

made in the plaint that the plaintiff is in occupation of 1000

sq.mtrs of land beyond regularisation, which has not yet been

regularised in his favour under any of the schemes of the

Andaman & Nicobar Administration.

17. There is a specific bar against having more than 200 sq.mtrs. per

family if the land is used for construction of dwelling unit in Urban

Area under circular dated August 17, 1987 have the force of law to

restrict encroachment and occupation of the government land by a

person in an urban area, and therefore, the plaintiff was allowed to

have 200 sq. mtrs. by regularising in his favour and same was also

recorded in ROR and the remaining 1000 sq. mtrs encroached

land cannot be regularised.

18. This Court has carefully perused regulation 202 (6) of the said

regulation and finds that in case any dispute arises with regard to

the eviction or ejectment of encroached government revenue land,

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the power is vested in the Deputy Commissioner, who has the

authority to decide the issue relating to encroachment. The Deputy

Commissioner may, if satisfied that the work was constructed

under a bonafide mistake and that the land can be allowed to

remain in the possession of such person without any serious

detriment to public purpose, condone the encroachment under

such terms as he may deem fit but case in hand is entirely

different.

19. The court would further like to refer to the appropriate

regulations/sections for the sake of convenience and a better

understanding of the legal position.

Regulation 28 of the said Regulation reads as follows:

28. (1) Save as otherwise provided in this Regulation, an appeal

shall lie from every original order passed under this

Regulation of the rules made thereunder

(a) if such order is passed by any revenue officer subordinate

to the Sub Divisional Officer, whether or not the officer

passing the order is invested with the powers of the Deputy

Commissioner, to the Sub Divisional Officer:

(b) if such order is passed by the Sub Divisional Officer,

whether or not invested with the powers of the Deputy

Commissioner, to the Deputy Commissioner;

(c) if such order is passed by any revenue officer subordinate

to the Settlement Officer, to the Settlement Officer;

(d) if such order is passed by a Deputy Commissioner,

whether exercising the powers of Deputy Commissioner or

Settlement Officer during the currency of the term of any

settlement, to the Chief Commissioner;

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(e) if such order is passed by a Settlement Officer, whether

exercising the powers of Settlement Officer or the powers of a

Deputy Commissioner in connection with any settlement

operation, to the Settlement Commissioner. Persons by whom

appearances and applications may be made before and to

revenue officers 9 No appeal against certain orders Limitations

of appeals

(2) A second appeal shall lie against any order passed in first

appeal

(i) by the Sub Divisional Officer or the Deputy Commissioner

or the Settlement Commissioner, to the Chief Commissioner

(ii) by the Settlement Officer, to the Settlement Commissioner.

(3) An order passed in review varying or reversing any order shall

be appealable in like manner as the original order.

Regulation 38 of the said Regulation reads as follows:

38. (1) All land in the Union territory of the Andaman and

Nicobar Islands is vested absolutely in the Government, and,

save as provided by or under this Regulation, no person shall be

deemed to have acquired any property therein or any right to or

over the same by occupation, prescription or conveyance or in

any other manner what so ever except by a conveyance executed

by, or under the authority of, the Government.

(2) The right to all trees, brushwood, jungles or other natural

product wherever growing, expect in so far as the same may be

the property of any person, vests in the Government and such

trees, brushwood, jungles or other natural product shall be

preserved or disposed of in such manner as may be prescribed

keeping in view the interests of the people the area with regard to

the user of the natural products.

(3) All such trees which have been planted and reared by, or

under the orders, or at the expense, of the Government and all

trees which have been planted and reared at the expense of any

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local authority by the side of any road belonging to the

Government, shall vest in the Government.

(4) Where a dispute arises in respect of any right under sub

section (1) or subsection (2) or subsection (3) such dispute shall

be decided by the Deputy Commissioner.

(5) Any person aggrieved by any order passed under subsection

(4) may institute a civil suit to contest the validity of the order

within a period of one year from the date of such order.

(6) Where a civil suit has been instituted under subsection (5)

against any order, such order shall not be subject to appeal or

revision under this Regulation.

Regulation 204 of the said regulation reads as follows:

“No suit or other proceeding shall unless otherwise expressly

provided in this regulation, lie or be instituted in any civil

Court with the respect of any matter arising on the provided

for by this regulation”

Regulation 202 of the said Regulation reads as follows:

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 Tehsildar 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 times as the Tehsildar may fix, shall be

liable to forfeiture.

(2) Any property forfeited under subsection (1) shall be

disposed of in such manner as the Tehsildar may direct and

the cost of removal of any crop, building or other work and of

all works necessarily to restore the land to its original

condition shall be recoverable from such person as an arrear

of land revenue.

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(3) Such person shall, subject to the provisions of subsection

(5), also be liable, at the discretion of the Tehsildar, to a fine

which may extend to two hundred and fifty rupees.’

(4) The Tehsildar may apply the whole or any part of the fine

imposed under sub section (3) to compensate persons who

may, in his opinion, have suffered loss or injury from such

unauthorized occupation.

(5) If any case, the Tehsildar considers that circumstances of

the case warrant imposition of a fine exceeding two hundred

and fifty rupees he may refer the case to the Sub Divisional

Officer who shall then, after giving the party concerned an

opportunity of being heard, pass such orders in respect of fine

as he may deem fit.

(6) If any person ordered to be ejected under subsection (1)

has constructed any work of a permanent nature under a

bonafide mistake, he may apply to the Deputy Commissioner

for condonation of the encroachment and the Deputy

Commissioner may, if satisfied that the work was constructed

in under a bonafide mistake and that the land can be allowed

to remain in the possession of such person without any

serious detriment to public purpose, condone the

encroachment under such terms as he may deem fit.

(7) No order made under subsection (1) shall prevent any

person from establishing his rights in a civil court.

(8) If notice of an intention to institute a suit is delivered to

the Tehsildar, he shall desist from carrying out his order

under subsection (1) for a period of three months, and if such

suit is filed within such period, he shall stay his proceedings

pending the decision of the civil court.

Section 34 of the Specific Act reads as follows:

Discretion of court as to declaration of status or

right. —Any person entitled to any legal character, or to

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any right as to any property, may institute a suit against

any person denying, or interested to deny, his title to

such character or right, and the court may in its

discretion make therein a declaration that he is so

entitled, and the plaintiff need not in such suit ask for

any further relief:

Provided that no court shall make any such

declaration where the plaintiff, being able to seek further

relief than a mere declaration of title, omits to do so.

Explanation. —A trustee of property is a “person

interested to deny” a title adverse to the title of someone

who is not inexistence, and for whom, if in existence, he

would be a trustee.

20. Upon careful perusal of regulation 204 of the said regulation, it

appears that the regulation expressly bars the judicial civil court

unless otherwise expressly provided in this regulation, lie or be

instituted in any civil Court with the respect of any matter arising

on the provided for by this regulation. In the present suit, the

dispute as regard to the encroachment of more than 200 Sq.mtrs

and its regularisation comes within the purview of the said

regulation,1966. A person cannot claim for regularisation beyond

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200 Sq.mtrs as it is strictly prohibited under the regulation and

Government circular.

21. Other provisions stipulated herein above are also clear and explicit

on the issues involved in the present appeal.

22. Admittedly the Appellant had encroached Government revenue

land beyond the permissible unit i.e. 1200 Sq. Mtrs. Out of which,

the 200 Sq.mtrs was regularised in favour of the Appellant and

recorded his name in ROR but the Appellant tries to regularised

further admittedly encroached Government revenue land more

than 200 Sq. Mtrs is not at all permissible under the Government

regulation, rules and/or circular.

23. Civil Suit against such order of ejectment of the encroacher of the

Government revenue land is not at all maintainable and same is

liable to be rejected under Order VII Rule 11 of the Code of Civil

Procedure Code. If the encroachment of Government revenue land

had been within the permissible limit, then the appellant would

have right to establish his right in a Civil Court otherwise there is

appropriate authority for his redressal of his relief under the

Regulation.

24. The judgment relied upon by the Learned counsel of the

appellant is not at all applicable in the present case as the case in

hand is totally different.

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25. Consequently, the appellant has failed to satisfy any of the

aforesaid substantial question of law. This court is of view that

there is no other substantial question of law involved to be decided

in the present case as such there is no merit in the instant second

appeal.

26. Consequently, the appeal being SAT 15 of 2024 stands dismissed.

27. Connected application, if any, is also dismissed.

28. Concurrent findings of the Court’s below is hereby affirmed.

29. There shall, however, be no order as to costs.

30. Registry is directed to send down a copy of this judgment and

order together with Trial Court record to the Learned Trial Court

for information.

31. All parties shall act on a server copy of the judgment and order

obtained from the official website of High Court.

32. Urgent Photostat certified copies of this judgment, if applied for, be

made available to the parties subject to compliance with requisite

formalities.

(Ajay Kumar Gupta, J.)