Subrata Sarkar v. The Andaman and Nicobar Administration

Judgment

#1. The petitioner along with one P. Fatima obtained co- tenancy concerning the premises pertaining to survey No. 348 measuring an area of 2.02 hectares of land classified as paddy land as per Record of Rights or Holding Register under Rule 132 as mentioned in Form F in the village of Rabindra Nagar within (Port Blair) Little Andaman Tehsil.

#2. The aforesaid P. Fatima executed a sale agreement relinquishing her right on the aforesaid property in favour of the petitioner on 07.07.2022 through a sale agreement whereby the entire plot of land as mentioned above was possessed by the 2 petitioner. The petitioner in order to till the land for the purpose of agriculture detected presence of certain materials in the soil namely waste moorum which diminished the fertility of the soil otherwise required for cultivation. The petitioner unaware of the legal implications accumulated the unearthed moorum on a part of the landed property in his possession and endeavored to improve the qualitative viability of the soil through addition of husk and cow dung as organic fertilizers. The petitioner approached the Tehsildar, Little Andaman to assist him with necessary provision to increase fertility of the soil through land reformation which was confronted with certain demands refuted by the petitioner, consequently been prevented from further attempt to cultivate his land. The petitioner subsequently addressed the Deputy Commissioner, South Andaman of his intention and endeavor to continue with the improvisation of the quality of the soil through Tehsildar, Little Andaman on

20.03.2025. To his utter dismay the petitioner was thrust with the impugned order dated 28.03.2025 issued by the Deputy Commissioner, South Andaman in connection with RC Case No. 762/2025/DC(SA)/1529 dated 28.03.2025/01.04.2025 under Rule 34 of the Andaman and Nicobar Minor Mineral Rules, 2012 read with Section 201 (6) of the Andaman & Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 imposing 3 penalty on the petitioner for illegal extraction and dumping of gravel.

#3. The petitioner, however, was not served with the copy of the aforesaid order. The petitioner filed a fresh application at the office of the Commissioner-cum-Secretary Andaman & Nicobar Administration forwarding copies of the same to other authorities of the Andaman & Nicobar Administration dated

16.05.2025 seeking permission to redevelop the question to ameliorate the quality of the soil suitable for agriculture. The petitioner, however, received the copy of the impugned order through Tehsildar, Little Andaman on

22.05.2025.

#4. Mr. Deep Chaim Kabir, learned Senior Advocate representing the petitioner submitted the impugned order passed by the respondent authorities was contrary to the legal provisions since the petitioner was not extracting gravel to the extent of 150 CBM as claimed, from the land, without permission from the concerned authority for the purpose of illegal mining, in violation of Andaman & Nicobar Minor Mineral Rules, 2012. The respondent authority had no power to invoke the provisions of Rule 34 of the Andaman and Nicobar Minor Minerals Rules 2012, since mining activities were not conducted by the petitioner on the land in question. Neither the extracted 4 moorum was piled or stacked for commercial benefit nor was it transferred to any other place with an intention to gain profit out of it. Accordingly imposition of fine under Section 201(6) of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations, 1966 had been unlawful and arbitrarily passed exceeding jurisdiction by the administrative authorities. The penalty of Rs. 4,80,000/- was exorbitant without legal validity.

#5. The respondent authorities granted 2.02 hectares of paddy land in favour of the petitioner and one P. Fatima at the inception which was subsequently possessed by the petitioner alone in the event of the co-tenant transferring her share of right in the aforesaid 2.02 hectares of paddy land in favour of the petitioner. The sole intention of the petitioner was to plough the land to nurture the fertility of the soil for the purpose of cultivation. The unearthing of the moorum or gravel had been incidental without the knowledge of the petitioner who had informed the Commissioner-cum-Secretary, Andaman and Nicobar Administration through communications dated

20.03.2025 and 16.05.2025 seeking permission of the same to undertake comprehensive land redevelopment project. The petitioner through the said communication further sought permission to establish an Organic Fertilizer Production Unit on 5 his land. The petitioner was not aware of the impugned order dated 01.04.2025 prior to such communication dated

16.05.2025.

#6. The learned advocate representing the petitioner further submitted the respondent authority to have failed to prove the accumulated moorum on the land possessed by the petitioner was contrary to the activities as mentioned in Rule 34 of the Andaman and Nicobar Minor Mineral Rules, 2012. The petitioner had informed the Deputy Commissioner, South Andaman District through a communication dated 20.03.2025 the inadequate quality of the soil not conducive for cultivation of the land as well as presence of excessive moorum seeking further permission to reform the land, which was not considered by the respondent authorities.

#7. The learned advocate representing the respondent authorities submitted a field inspection to have been conducted by a concerned Patwari upon direction which revealed the extracted material to have been deposited on the land bearing survey No. 348 as aforesaid, which was to the extent of 150 CBM of gravel. The said amount of gravel was illegally extracted by the petitioner and accordingly a fine of Rs. 4,80,000/- was imposed as the petitioner was indulging in illegal extraction of the gravel. Moreover, the information of the presence of 6 excessive moorum on the land in question was informed to the respondent authority after the inspection was conducted and not prior to the same, endorsing the illegal intent of the petitioner to have been involved in illegal extraction of the gravel, in the pretext of enhancing the poor quality of the soil and its fertility thereof. The respondent authority was therefore justified in penalising the petitioner.

#8. The respondent authority had not confronted the right of the petitioner to possess the land in question as recorded in the survey register which unequivocally identified the nature of rights to have been conferred to the petitioner with regard to the paddy land in distinction to a land akin to mining.

#9. The petitioner intimated the respondent authority on

20.03.2025 of detection of presence of excessive moorum hindering the growth of plants and trees on the plot of land decreasing the soil’s water holding capacity seeking permission from the concerned authority to pursue land reformation methods assuring an undertaking to comply with the relevant rules and regulations without causing prejudice to the environment. The inspection report was filed on 21.03.2025 a day after the permission was sought by the petitioner as aforesaid. The inspection report concerning illegal extraction of earth gravel etc. did not mention the exact date on which the 7 inspection was conducted. It cannot be sacrosanctly stated the inspection to have prompted the petitioner to inform the concern authorities about presence of excessive moorum on the land possessed by him seeking permission for land reformation to nourish the soil compliant for cultivation through measures mentioned therein.

#10. Rule 34 of Andaman and Nicobar Minor Mineral Rules, 2012 states as follows: “34. Checking of unauthorized transaction or transit of minor minerals. – Any person who possesses any minor mineral for processing, consumption or for sale has sold any minor mineral shall, if so required, produce sufficient proof including Cash Memorandum or copy of Transit Pass, to the Competent Authority or to any other person authorized in this behalf by the Competent Authority to the effect that the minor mineral had been purchased from any duly authorized quarry lease holder or importer of minor mineral, as the case may be, failing which the Competent Authority or such authorized person may seize the minor mineral and realize an amount not exceeding a sum calculated at double the market value of such mineral thereof.”

#11. The respondent authorities failed to prove the conditions enumerated in Rule 34 as aforesaid to implicate the petitioner in illegal extraction of the gravel. The petitioner on the contrary has complied with Rule No. 47 of the aforesaid rules seeking for permission vide the communication dated 20.03.2025 and subsequent communication dated 16.05.2025 as aforesaid. Rule No. 47 states as follows:- “47. Quarrying for domestic or agricultural purpose.- (1) In case of improvement of land for construction of residential building, creation of playground for public purpose, construction of canals, wells, roads or for agricultural and such other purpose where extraction of minor mineral is inevitable, the Competent Authority may grant permit in Form -8, on such terms and conditions, as it 8 may specify, other than those specified in these rules on the basis of an application by interested party alongwith a sworn affidavit to the effect that such excavation will not pose any danger to life and property of any person in the vicinity. Provided that a transit pass shall be issued for transport of such minor mineral by the authorized officer on application by the interested party. (2) A person permitted to extract minor mineral under sub- rule (1) shall be exempted from obtaining quarrying lease. (3) Removal of minor mineral by a person, firm, association or company for the purposes as mentioned in sub-rule (1) without a valid permit shall amount to an offence under the provision of Act and these rules. (4) Royalty for the minerals extracted shall be paid at the rates fixed for the said mineral in the Union Territory.”

#12. The respondent authorities failed to prove the petitioner to have been processing the gravel or to have been utilizing it for consumption or for sale. Cash memorandum or copy of transit pass could not be produced as admittedly the gravel was identified being accumulated on the plot of land as aforesaid. The respondent authorities also could not place on record any transaction of sale or purchase of the extracted gravel by a third party from the petitioner. Mere assertion based on assumption or suspicion that the stacked gravel was illegally extracted to sub serve ulterior motive in absence of relevant documentary evidence cannot be acceptable. The petitioner was not granted an opportunity explain the exact state of affairs and had been imposed with the penalty frustrating the principle of natural justice. 9

#13. The respondent authorities based on conjecture and hypothesis devoid of adequate credible evidence issued the impugned order and the same cannot be sustained.

#14. The impugned order in connection with R.C. No 762/2025/DC(SA)/1529 dated 28.03.2025/01.04.2025 is set aside.

#15. WPA/266/2025 is accordingly allowed.

#16. No order as to costs.

#17. Urgent photostat certified copy of this judgment, if applied for, may be supplied to the parties upon compliance of usual formalities. (ANANYA BANDYOPADHYAY, J.)