Dr.Mohammed Ali vs Chief Secretary & Others

Re: CAN No.099 of 2019

This is an application for vacating the order dated 6th August, 2019 passed by this Bench and to protect the rights of the applicants in accessing their land and properties and also to prevent any obstruction to the free ingress and egress by constructing a boundary wall. The main grievance of the respondents no.5 and 6 being the applicants herein is that the appellant by taking advantage of the order dated 6th August, 2019 have raised a boundary wall by which the passage to the plot of the respondents no.5 and 6 has been blocked. It is further submitted that in the previous round of litigations two orders were passed one by a learned Single Bench on 13th December, 2018 in WP No.229 of 2018 (Dr.Mohammed Ali Vs. The Andaman and Nicobar Administration & others) and the other by a Division Bench in MAT No.1397 of 2018 (Mohammed Rafique & another Vs. Dr.Mohammed Ali & others) on 13th February, 2019. The relevant portion of the order dated 13th December, 2019 is quoted hereinbelow for the sake of convenience:

" Considering the report as quoted above and considering the rival submissions advanced by the learned advocates appearing for the respective parties, the petitioner is directed to construct the boundary wall upto 8 metres length which was demolished and install the main iron gate with pillars which was removed at his own cost.

The petitioner is also directed to allow the private respondents to use that main gate to get access to their property including their two authorized representatives."

The relevant portion of the order dated 13th February, 2019 is also set out herein for the sake of convenience:-

"In the said proceeding, it was open for the Administration to contend that the direction for removal of any obstruction following due process of law under the 1966 Regulations is not in conflict with the direction passed in the order dated 7th September, 2018 and on that score alone, the contempt proceeding could have been terminated.

The learned Single Judge on consideration of the materials on record also thought it fit and proper to be dealt with by regular Bench. Once the learned Single Judge has arrived at such conclusion in the contempt jurisdiction, no such consequential orders could have been passed although the same orders could have been justifiably passed in an interlocutory application or by amendment of the writ petition. Moreover, as on the date when the interim orders were passed the learned Single Judge did not have any determination to hear the main writ application and any order passed without having the determination would be nonest. (See Sohan Lal Baid Vs. State of West Bengal and others, reported in AIR 1990 Cal 168. Paras 24, 25, 26 and 27) and Kanak Projects Ltd. Vs. Amrita bazaar Patrika Pvt. Ltd. & others, reported in (2007) 2 CHN 492].

On such considerations, the impugned orders cannot be sustained. The writ petitioners however have prayed before us that the order passed by Justice Chatterjee on 13th December, 2018 by which the interim arrangements passed earlier was directed may continue till the disposal of AST No.076 of 2018. In view of the fact that the said order was passed by Justice Chatterjee having determination and the said order is not under challenge we feel that the interim arrangement shall continue till the disposal of the writ petition. Accordingly, the interim arrangements passed earlier shall continue till the disposal of the writ petition.

By consent of the parties, AST No.076 of 2018 is treated as on day's list and disposed of by confirming the interim order passed by Justice Chatterjee on 13th December, 2018.

Before us at the hearing of the stay application this issue of the free ingress and egress to the plot of the applicants was canvassed. In view of the nature of the allegations in the instant application we are inclined to take up the same to prevent multiplicity of litigation and the balance of convenience and inconvenience of the applicants particularly if their access to the property is blocked.

Considering the two orders dated 13th December, 2018 and 13th February, 2019 we find that the interim arrangement directed to be maintained in the order dated 13th December, 2018 passed by the learned Single Judge was affirmed by the order dated 13th February, 2019 passed by the Hon'ble Division Bench.

In view of the said two orders the appellant is obliged to allow the respondents no.5 and 6 entry through the passage as indicated in the said two orders. We are of the view that neither the pendency of the appeal being MAT No.941 of 2019 nor the order dated 6th August, 2019 can disturb the status quo existing in terms of the said two orders respectively dated 13th December, 2018 and 13th February, 2019. Any deviation from such position will amount to interference to the administration of justice particularly when the appeal wherein the order dated 6th August, 2019 has been passed is pending.

The respondents no.1 to 4 being the Administration is directed to see that there is no deviation from the situation existing after passing of the two orders respectively dated 13th December, 2018 and 13th February, 2019. Any change brought in or attempted to be brought in after the order dated 13th December, 2018 or the order dated 13th February, 2019 or the order dated 6th August, 2019 should be restored back to status quo ante to enable the applicants to have passage to their respective lands in terms of the interim arrangement indicated in the order dated 13th December, 2018 and affirmed by the order 13th February, 2019.

The Administration should immediately inspect the locale to verify the situation, if required to take assistance of the survey maps and the parties to the proceedings should cooperate with the Administration in this regard. The Administration if finds that the access of the applicants to their respective land is blocked by the appellant in ignoring the interim arrangement, the Administration shall remove all encroachment to enable the applicants have free ingress and egress as per the interim arrangement. The local police authority is directed to see that there is no breach of peace while the Administration inspects the locale or take any steps to restore status quo ante.

The application being CAN No.099 of 2019 is disposedof.

Since we have not invited any affidavit the allegation made in the application are deemed to have been not admitted by the appellant.

Re: CAN No. 6210 of 2019

On behalf of the appellant a prayer is made for extending the time to file the paper books as given in the order dated 6th August, 2019. Considering that the instant application has been moved today, we extend the time by a further period of two weeks from 6th August, 2019. The rest of the order dated 6th August, 2019 remains intact. Since no fruitful purpose will be served keeping the stay application being CAN No.6210 of 2019, pending, the same is also disposed of.