Fathima Bibi vs A&N Administration & Others

Arindam Sinha, J

By this writ petition order dated 6th August, 2019 made by Secretary, Municipal Council, Port Blair has been impugned.

Mr. Jayapal, learned advocate appears on behalf of petitioner and submits, this is third challenge to the Municipality's attempt to demolish his client's building. It was constructed per plan, except for some deviation, that ought to be regularized on payment of compensation, which his client is ready and willing to pay.

He refers to order dated 11th January, 2019 made in writ petition of private respondent, by which order dated 13th July, 2018, for demolition, was set aside, on direction upon petitioner, therein respondent no. 4, to file proper application giving her answers to concerned show cause notices. Facts in that case were, the Municipality had issued show cause notices and thereafter made demolition order, for enforcement of which private respondent herein had moved Court under article 226 of the Constitution of India. What is important is, thereafter parties accepted the order and proceeded afresh on the question of demolition.

A second demolition order was issued, which was also set aside, this time on petitioner's earlier writ petition. By order dated 5th March, 2019, inter alia, following was said:-

"It is not in dispute that a copy of the said order was filed before the Secretary of the PBMC. From the impugned order of the Secretary of the PBMC it does not appear that he considered the order of the Division Bench passed in MAT No.006 of 2009. There is no reference to the said order of the Division Bench in the impugned order of the Secretary of the PBMC. The Secretary of the PBMC was duty bound to specifically refer to the said order of the Division Bench and discuss the effect thereof. The Secretary has failed to do so.

On this limited ground, I set aside the order impugned and remand the matter back to the Secretary of the PBMC for passing a fresh order in the light of the order of the Division Bench passed in MAT No.006 of 2009."

Impugned order was passed pursuant to said order.

Mr. Jayapal submits, judgement dated 31st March, 2009 in MAT 006 of 2008 (Shri K.N.Suresh vs the Lt. Governor and others) passed by a Division Bench in Circuit, expressed views which are binding on the Municipality and this Court. By said judgement the Division Bench considered regulation 168 in Andaman and Nicobar Islands (Municipal Council) Regulations, 1994. Regarding the Municipality's power to obtain compensation for regularizing deviation he relies on the following in the judgement :-

"The use of the word "compoundable" in the relevant part of the order dated July 20, 2007 is an obvious reference to the municipal bye-laws where it is found. Section 168 (f) of the said Regulation of 1994 covers all cases of contravention of the bye-laws. Whether or not the bye-laws make certain acts of violation thereof compoundable and certain others non-compoundable, the second proviso to section 168 permits the corporation to allow any construction made in breach of the bye-laws to stand, upon reasonable compensation being extracted from the offender."

He submits, it is imperative for the Municipal authority to exercise discretion on amount of compensation to be paid by his client. It must exercise this power as opposed to seeking to demolish construction made by his client.

Mr. Prasanth, learned advocate appears on behalf of the Municipality and submits, impugned order is a good order. The Authority had considered the Division Bench judgement, regarding its power to require compensation to be paid for regularizing deviation from plan. Impugned order exhibits application of mind to scope and effect of said judgement but the Authority refused to compound or regularize the unauthorized constructions, relying upon judgement of Supreme Court in Dipak Kumar Mukherjee vs. Kolkata Municipal Corporation reported in (2013) 5 SCC 336, paragraph 27. He submits, enormity of deviation is, inter alia, 15 meters high building was erected where 6 meters was sanctioned. He submits further, his client if regularizes the deviations, it will open floodgate and unauthorized constructions would become the norm. Mr. Lall, learned advocate appears on behalf of private respondent and adopts submissions made by Mr. Prasanth. He submits further, said Division Bench judgement does not mandate regularization but points out that the Authority has discretion. By impugned order there has been conscious decision to not exercise discretion, on reasons given therein.

There is recital in impugned order that petitioner was given opportunity of hearing. Petitioner appeared before the Authority with her learned advocate. Petitioner had requested she be provided with details in respect of violation in constructing the building and accordingly same were provided on 4th February, 2019. Adjournment was sought and obtained by her but she did not file written submission.

The Authority, by impugned order, says he had gone through the Division Bench judgement. Then there is mention of particulars of deviation and on referring to Dipak Kumar Mukherjee (supra), the Authority was of view that by no stretch of imagination demolition can be waived on compensation to be paid.

Mr. Jayapal submits in reply, Dipak Kumar Mukherjee (supra) is distinguishable on facts. Kolkata Municipal Corporation Act, 1980 and the Building Rules of 1990 were under consideration in the case. The Regulations of 1994 are different in providing for constructions being made in the city and as such, what was said by Supreme Court in context of the Act of 1980 and Rules thereunder, cannot be made to apply to his client's case of deviation in construction.

By impugned order, following in paragraph 27 of Dipak Kumar Mukherjee (supra) was relied upon :-

"27. ... ... ... It must be remembered that while preparing master plans/zonal plans, the Planning Authority takes into consideration the prospectus of future development and accordingly provides for basic amenities like water and electricity lines, drainage, sewerage, etc. Unauthorized construction of buildings not only destroys the concept of planned development which is beneficial to the public but also places unbearable burden on the basic amenities and facilities provided by the public authorities. At times, construction of such buildings becomes hazardous for the public and creates traffic congestion. Therefore, it is imperative for the concerned public authorities not only to demolish such construction but also impose adequate penalty on the wrongdoer."

It appears from above extract, the same is declaration of law and binding on this Court as such. That it is a declaration of law applicable to facts and circumstances of this case is because what was in dispute or up for adjudication before the apex Court was a matter of deviation from sectioned plan. Supreme Court looked at the provision for deviation during execution of work, provided in the rules under the Act of 1980. It is in that context Supreme Court said what it did regarding zoning.

For reasons aforesaid this petition is found to be without merit and requires no interference. The same is dismissed.

Mr. Jayapal submits, there be direction upon the Municipal Council to stay its hands till his client has had opportunity to exercise statutory right of appeal against this order passed now. He, therefore, seeks stay of operation of this order. On query from Court Mr. Prasanth submits, his client will not take any step till after expiry of next Circuit.