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TMI Blog2014 (3) TMI 1215X X X X Extracts X X X X X X X X Extracts X X X X ..... iefly recapitulate the same as under: 4. Vitoba, the grandfather of the first Appellant and father of the remaining Appellants was allotted a plot of land measuring 43 acres, 12 Kanals and 10 marlas situate within the limit of Ferragunj Tehsil in the South Andaman District in terms of Regulation 4(1)(b) of the Andaman and Nicobar Islands (Land Tenure) Regulation, 1926. At some stage of the long drawn proceedings between the parties, one of the issues that arose for determination was whether the grant in question was made in terms of Regulation 4(1)(a) or 4(1)(b) of the Regulation mentioned above. The Andaman and Nicobar Administration ('Administration' for short) was of the view that although the grant was made in Form B under the Regulation 4(1)(b) of the Regulations, the same was in reality a grant under Regulation 4(1)(a) thereof. That part of the controversy no longer survives for consideration before us. The submissions made before us proceeded on the common premise that the grant was indeed one, made under Regulation 4(1)(a) of the Regulation in question. 5. The grant made in favour of Vitoba was in terms of Regulation 4(1)(a) valid for a period of 30 years but coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d shall consider her such representation considering that the predecessor of the Petitioner was enjoying the possession of the land in question as licence, positively within 4 months from the date of making such representation. Till three weeks after the disposal of the representation, status quo as on today shall continue. 7. The above order attained finality as the same was not challenged by the writ-Petitioner in appeal. A second renewal of the grant was held to be impermissible under the Regulations. The High Court all the same permitted the legal heirs of the grantee to make a representation for a fresh grant in their favour in regard to the coconut plantation. No such representation having been filed, a fresh notice dated 20th July, 1998 was issued to the legal heirs, namely, Smt. Sangita Bai More and seven others by the Deputy Commissioner asking them to hand over physical possession of the land in question to the Government. On receipt of the said notice Shri Shiv Chander More, one of the legal heirs of the original grantee, filed Writ Petition No. 54 of 1998 before the High Court which was disposed of by the High Court on 16th November, 1998 once again holding that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce they are not going to be rendered homeless on resumption of the grant, they are not entitled to get the Grant renewed in their favour. Therefore, the petition of the Petitioner is rejected and the representation is hereby disposed off. 10. Aggrieved by the order passed by the Lieutenant Governor, the legal heirs of the original grantee filed Writ Petition No. 91 of 2001 before the High Court which was allowed by a Single Judge of the High Court by his order dated 18th September, 2001. The High Court held that since the Petitioners and his family members had developed the land spending considerable amount, they need not be evicted from the land until and unless such land is actually needed for any public purpose. In case the land is needed for public purpose, the Petitioner or anyone else shall not be entitled to retain claim to the land in question observed the High Court for public purpose must get precedence over all other purposes. But until and unless the land in question is actually needed for any public purpose, the possession of the Petitioner or his family members should not be disturbed nor possession of the land handed over to any other individual. The High Court obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other than seeking fresh grant and/or renewal, that did not fall for consideration in the representation before the Lt. Governor and the High Court. We express no opinion in that regard. The appeal is allowed to the aforesaid extent without any order as to costs. 13. A fresh round of litigation was then triggered by order dated 23rd June, 2008 passed by the Deputy Commissioner whereunder the Deputy Commissioner relying upon the decision of this Court directed the Petitioners to handover the possession of the subject land within 15 days from the date of receipt of the said order failing which Tehsildar, Ferragunj, was directed to initiate appropriate action as per law to restore the land to the Government. Writ Petition No. 174 of 2008 filed to challenge the direction issued by the Deputy Commissioner not only assailed the order issued by the Deputy Commissioner but also prayed for a mandamus directing the Respondents not to interfere with their possession over the disputed land. That petition was eventually dismissed by a Single Judge of the High Court holding that the Petitioners were not entitled to raise any question relating to the refusal of renewal or a fresh grant in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s round of litigation so as to attract the doctrine of res judicata or the principles underlying the same. 15. On behalf of the Respondents it was argued by Mr. Balasubramanian, that the present round of litigation was an abuse of the process of law. It was submitted that this Court having clearly held that the order passed by the Lieutenant Governor was legal and valid, there was no room for any further debate on the question whether the Appellants were entitled to a renewal or a fresh grant. He urged that the Appellants were debarred from claiming any benefit even under the 1966 Regulation because any such benefit could and indeed ought to have been claimed by them in the previous round of litigation in which the Appellants were claiming a renewal or in the alternative a fresh grant in their favour. The High Court was, therefore, justified in declining interference with the order passed by the Deputy Commissioner, argued the learned Counsel. 16. Two distinct questions arise for our consideration. These are: (1) Whether the Appellants are debarred from resisting eviction from the land in question on the ground that they have acquired the right to continue in possession even wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as they appear to be doing now, that the 1966 Regulations entitled them to continue in occupation regardless of whether there was a renewal of the grant in their favour and regardless of whether or not, there was a fresh grant in respect of the land. The contention now sought to be urged that the occupants can continue to occupy the land in question in perpetuity without even a renewal or without a fresh grant in their favour subject only to the condition that they did not violate the provisions of Regulation 151 was available to the occupants which could and indeed ought to have been raised by them at that stage. Inasmuch as the occupants did not urge any such point or raise any such contention in the previous round of litigation ending with the order of this Court in Civil Appeal No. 5091 of 2004 the Lt. Governor and Ors. v. Shiv Chander More and Ors. reported in 2008 (4) SCC 690, they are debarred from doing so in the present proceedings on the principles of constructive res judicata. That constructive res judicata in principle applies even to writ proceedings is fairly well-settled by several decisions of this Court. We may briefly refer to some of those decisions which elabora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r another and urge new grounds every time; and that plainly is inconsistent with considerations of public polity to which we have just referred. 20. Reference may also be made to the Constitution Bench decision in Direct Recruit Class-II Engineering Officers Assn. v. State of Maharashtra (1992) 2 SCC 715 where this Court once again reiterated that the principles of constructive res judicata apply not only to what is actually adjudicated or determined in a case but every other matter which the parties might and ought to have litigated or which was incidental to or essentially connected with the subject matter of the litigation. This Court observed: ...an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd be subject to all the liabilities conferred or imposed upon a non-occupancy tenant by or under this Regulation, namely: (a) every person who, immediately before the commencement of this Regulation, was a non-occupancy tenant under the provisions of the Andaman and Nicobar Islands (Land Tenure) Regulation, 1926; (b) every person who is granted a licence under Clause (ii) of Section 146 in respect of any agricultural land. 144. (1) Every person belonging to any of the following classes shall be called a grantee and shall have all the rights and be subject to all the liabilities conferred or imposed upon a grantee by or under this Regulation, namely: (a) every person who, immediately, before the commencement of this Regulation, was in occupation, of any land in pursuance of a grant made under the Andaman and Nicobar Islands (Land Tenure) Regulation, 1926; (b) every person to whom a grant is made under Clause (i) of Section 146. (2) Notwithstanding anything contained in Sub-section (1), every person who, not being an occupancy or non-occupancy tenant, is in possession of any account or arecanut plantation in the Nicobars immediately before the commencement of the Regulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. (3) No order for ejectment shall be executed before the 1st day of February or after the 30th day of April in any year. 25. It was contended by Mr. Kohli that since the Appellants were in occupation of disputed land in terms of grant made under the Andaman and Nicobar Islands (Land Tenure) Regulation, 1926; they were grantees and had all the rights and were subject to all the liabilities conferred or imposed upon a grantee by or under the 1966 Regulations. It was contended that although the period of grant made in favour of the Appellants had expired and no renewal was made in their favour, such renewal not being permissible, they were not liable to be evicted except on one or more of the grounds enumerated under Regulation 151 (supra). Mr. Kohli argued that the interpretation sought to be placed by him upon the provisions of the said Regulations may result in every grant made under the 1926 Regulation and those made under, 1966 Regulation becoming a grant in perpetuity subject to the grantee avoiding the liability for eviction under Regulation 151 (supra), there is no reason why that interpretation should be avoided especially when it was meant to benefit the occupants who a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as under: 211 (1) The Andaman and Nicobar Islands (Land Tenure) Regulation, 1926, is hereby repealed. (2) The repeal of the said Regulation shall not effect,- (a) the previous operation of the said Regulation or anything duly done or suffered thereunder; or (b) any right privilege, obligation or liability acquired, accrued, or incurred under the said Regulation; or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against the said Regulation; or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the said Regulation had not been repealed. (3) Subject to the provisions contained in Sub-section (2), anything done or any action taken under the said Regulation and the rules made thereunder shall in so far as it is not inconsistent with the provisions of this Regulation, be deemed to have been done or taken under this Regulation and shall continue to be done in for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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