J. Ramakannu vs Andaman & Nicobar Administration And Others

Debangsu Basak, J

The petitioner has challenged an order dated March 14, 2018 passed by the Principal Secretary, Urban Development, Andaman and Nicobar administration.

Learned advocate appearing for the petitioner has submitted that, a show cause notice dated January 20, 2017 was issued to the petitioner. By the impugned show cause notice, the petitioner was allowed to submit a reply thereto by January 23, 2017. January 20, 2017 was a Friday. Although the impugned show cause notice was served upon the petitioner on January 20, 2017, since, the next two days were holidays, the petitioner could not submit a reply. On January 23, 2017, the petitioner requested the authorities to extend the time to submit the reply till February 5, 2017. The authorities however demolished substantial portion of the structure leaving only a small portion from which the petitioner is presently carrying on business. He has submitted that, the authorities had relied upon an inspection report dated January 13, 2017 a copy whereof was not made over to the petitioner. Since the authorities were relying upon the report, it was incumbent on the authorities to an issue a copy of such report to the petitioner. Not having done so, the proceedings against the petitioner stands vitiated.

Learned advocate appearing for the petitioner has submitted that, the authorities had made a demand for damages and costs of demolition of encroachment on January 27, 2017. The petitioner had challenged the impugned demand dated January 27, 2017 as also the show cause notice dated January 20, 2017 in a writ petition. Such writ petition was disposed of by an order dated June 7, 2017 after setting aside the demand dated January 27, 2017. The matter was relegated to the Secretary, Urban Development, Andaman and Nicobar Administration, Port Blair for adjudication on the impugned show cause notice dated January 20, 2017 including the jurisdiction of the actions taken by the Municipal Council in demolishing a part of the extended shop of the petitioner on January 23, 2017.

Learned advocate appearing for the petitioner has submitted that, the Secretary of the Municipality had issued the impugned show cause notice. According to him, a Secretary of the Municipality cannot exercise executive powers for the purpose of carrying out the functions of the Municipality. According to him, the Municipal Council did not authorise the Secretary to issue the impugned show cause notice. Therefore, the impugned show cause notice is without any jurisdiction. In support of such contention, he has relied upon the provisions of Sections 46 and 52 of the Andaman and Nicobar Islands (Municipal) Regulation, 1994.

Learned advocate appearing for the petitioner has submitted that, assuming that, the Secretary of the Municipality has the power to issue the impugned show cause notice, then also, the Municipality ought to have granted appropriate time to the petitioner to remove the so- called projection in terms of Regulation 151 of the regulations of 1994. Moreover, Regulation 168 of the Regulations of 1994 contemplates regularisation of any unauthorised construction. In the present case therefore, the petitioner ought to have been afforded such opportunities. The Municipality did not afford the petitioner such opportunities. He has relied upon an unreported judgement and order dated March 31, 2009 of the Division Bench of the High Court rendered in MAT No. 006 of 2008 (Shri K in Sudesh versus the Lieutenant Governor and others) in support of his contention that, regularisation in terms of regulation 168 of the Regulations of 1994 is permissible.

Learned advocates appearing for the respondents have supported the impugned order. According to them, the impugned order was passed by an authority vested with the jurisdiction in terms of a High Court order. There is no infirmity in the impugned order warranting interference by the High Court.

The petitioner claims to have been allotted shop room nos. 1 and 2 in the municipal market, near bus terminus at Port Blair along with another person. The petitioner claims that, such allotment was made to the petitioner and a close relative when they had participated in a tender floated in respect of the allotment of the rooms by the respondent no. 3. According to the petitioner, the allotment was done by an office order dated June 29, 1998. The office order dated June 29, 1998 demonstrates that shop room no. 1 was allotted in favour of the petitioner and that, shop room no. 2 was allotted in favour of one Smti. E. Chitra. The petitioner has claimed that, subsequent to the allotment, the petitioner along with the other allottee decided to carry on business therefrom and obtained loan from bank and financial institution. Since the petitioner and the other allottee decided to carry on bakery business, the allotted space was insufficient. The petitioner requested the Chairman, Municipal Council, Port Blair, for permission to demolish the internal wall between the two shops as also the sidewall of shop room no. 1. The petitioner had also applied for necessary permission to extend the Verandah and for installation of the rolling shutters. According to the petitioner, such request was made in consonance with clause 5 of the allotment order dated June 29, 1998. Clause 5 of the allotment letter dated June 29, 1998, prohibits making of any additional alteration to the shop room without written permission of the Council. By a writing dated June 29, 1998, the petitioner was allowed to provide rolling shutters as also to extend the Verandah. The Municipality thereafter increased the monthly rent payable in respect of the two shops rooms. The petitioner on July 25, 2012 sought permission to increase the height of the shop room and change the roofing/shuttering of the shop rooms. Such permission was accorded on March 20, 2013. The Municipality contemplated increasing the rent of the two shops rooms on August 17, 2019. By a writing dated May 12, 2016, the petitioner requested the Municipality to issue office order with regard to the increase of rent.

By the impugned show cause notice dated January 20, 2017, the Municipality cancelled the allotment on the finding that, the petitioner was allotted a shop room measuring an area of 9.40 m² and that, the petitioner was in occupation of an excess area of 19.035 m². Apart from the excess area occupied, the petitioner was found to be guilty of removing the outer wall of the shop room, therefore, endanger the structure itself. By the impugned show cause notice, the petitioner was called upon to show cause as to why the allotment of the shops would not be cancelled and possession resumed by the Council. The Municipality proceeded to demolish the unauthorised portion on January 23, 2017. By the other impugned writing dated January 27, 2017, the Municipality raised a demand for charges and costs of demolition of the encroachment on the petitioner.

Being aggrieved by such actions of the Municipality, the petitioner had approached the High Court under Article 226 of the Constitution of India by way of WP No. 034 of 2017. Such writ petition was disposed of by an order dated June 7, 2017 by directing the Secretary, Urban Development, Andaman and Nicobar Administration, Port Blair to adjudicate upon the show cause notice dated January 20, 2017. It was provided that, the scope of adjudication will include the jurisdiction of the action taken by the Municipal Council to demolish a part of the extended shop on January 23, 2017. Procedure for conduct of the hearing was also laid down. All actions taken by the Municipality was directed to abide by the decision rendered by the Secretary.

The Secretary heard the parties pursuant to the order dated June 7, 2017. The Secretary passed the impugned order dated March 14, 2018 upholding the actions taken by the Municipality and finding that, the actions taken by the Municipality were not without jurisdiction. By the impugned order, the Secretary, Urban Development found that, the Secretary of the Municipality is the Chief Executive officer and that, in his capacity as such, it is obligatory on its part to enforce all Municipal laws, bylaws, and rules/orders thereunder. According to him, the Secretary of the Municipality is obliged to proceed and take suitable remedial action if the Secretary or his men of the Municipality, comes across any contravention of allotment or licence condition or structural violation in the Municipal area. The Secretary, Urban Development in his impugned order has found that, as against an allotment of 9.40 m², the petitioner was in occupation of an excess area of 19.035 m². Therefore, the petitioner was in illegal occupation of 19.035 m² and in excess. This was done by the petitioner by extending the shop room which did not have any sanction under the law. Therefore, the Secretary, Urban Development did not find any fault in the show cause notice dated January 20, 2017.

The show cause notice dated January 20, 2017 gave time till January 23, 2017 for the petitioner to reply thereto. The petitioner did not do so. Thereafter, the Municipality had demolished the excess area in occupation of the petitioner. The petitioner has failed to establish before the Secretary, Urban Development as also before this Court that, the petitioner was entitled to occupy an area in excess of 9.40 m² of the original allotment. The petitioner has failed to establish before the Secretary, Urban Development as also before this Court that, the Municipality had demolished any area which was originally allotted to the petitioner, that is, 9.40 m². Permission to make addition and alternations must be read and understood to be limited to the area originally allotted, that is. 9.40 m2. There nothing on record to suggest that, the original area allotted, that is, 9.40 m2 was enhanced by the Municipality. The petitioner had, therefore, made wholly unauthorized constructions and encroached on land not allotted to the petitioner. That being so, the petitioner cannot have a valid grievance on an admittedly unauthorised occupation.

By the impugned order, the Secretary, Urban Development, did not find any fault in the Municipality raising a demand for damages and costs and charges for the demolition as, admittedly, the construction made by the petitioner was unauthorised and that, the petitioner was in unauthorised occupation. Nothing has been placed before the court to substantiate that, the occupation of the petitioner beyond the originally allotted area of 9.40 m² was authorized. Again nothing has been placed before the court to substantiate that, any demolition was undertaken by the Municipality in the 9.40 m² area which was originally allotted to the petitioner. The petitioner is liable to pay the costs, charges and expenses expended by the Municipality to demolish the unauthorized structures.

Shri K.N.Suresh (supra) has considered a factual scenario which is different than obtaining in the present case. There, an owner of a plot was alleged to have made unauthorised construction. Considering the Regulations of 1994, the court found that, an opportunity to regularise such unauthorised construction ought to have been given. In the present case, the petitioner is guilty of encroachment onto area not belonging to the petitioner. Therefore the question of allowing regularisation of construction on property not belonging to the petitioner does not arise.

The impugned order of the Secretary, Urban Development being reasoned and not violative of the principles of natural justice, and the impugned order having taken a plausible view, interference by a writ court thereon is not warranted.

In view of the discussions above, WP No. 203 of 2018 is dismissed without any order as to costs.