Zohra Bibi And Another vs Andaman And Nicobar Administration And Others

Rajasekhar Mantha, J

The original writ petition being WP 272 of 2016 was listed before this Court. The said writ petition was filed seeking enforcement and execution of three Administrative successive orders. First of which 31st March, 2014 passed by the Secretary, Municipal Council, Port Blair, the second one being order dated 22nd March, 2016 passed by the Deputy Commissioner, South Andaman District confirming the order of the Secretary Municipal Council and thirdly, an order dated 13th October, 2016 passed by the Appellate Authority and the Lieutenant Governor, in a Second Appeal No. 4 of 2016 against the order of the Deputy commissioner, South Andaman.

By the said three orders, constructions made by the respondents in the aforesaid writ petitions namely Khatija Bibi @ Khatija Begum and Ashora Bibi @ Ashora Mushtaq were directed to be demolished. Two other writ petitions filed by the said Khatiza Begum @Bibi and Ashora Bibi being WP No. 423 of 2016 and WP No. 481 of 2016 were also mentioned by the Counsel for the persons responsible for the alleged illegal construction were listed to be heard along with WP 272 of 2016. By the said two writ petitions, the Khatija Begum and Ashora Mushtaq had challenged the three orders of demolition.

Strictly speaking, the second and third writ petitions are in essence the likely stand and defense that the private respondents in the first writ petition could have taken against the pleadings in the first writ petition being WP No. 272 of 2016.

However, pursuant to two earlier orders, leave was granted to Khatiza Bibi and Ashora Bibi to disclose documents relied upon by them which has been so done. Therefore, there is no dearth of pleadings of the respective parties against each other.

The facts of the case are, inter alia, that some time in the year 1990, in respect of land occupied as settler by the father-in- law of Khatiza Bibi and Ashora Bibi (some time in 1935), a notice was issued for unauthorized construction under the provisions of the then existing Municipal laws being the Andaman and Nicobar Islands Municipal Board Regulations, 1957. The said notice was issued against Ashora Bibi. The said notice dated 09.12.1991, alleged construction was made in violation of the said 1957 Regulation, particularly Section 158 (f) thereof to be holding illegal and unauthorized and called for demolition thereof on or before 06.01.1992. It was further required that the said Ashora Bibi to appear before the authorities to show cause as to why the demolition order should not be carried out.

There is nothing on record either pleaded in the writ petitions or before the authorities as to whether the said Ashora Bibi has appeared and opposed the order of demolition. The fact, however, remains that the construction was not demolished despite it being declared unauthorized.

Thereafter the Municipal Council was silent for well over 19 years.

On 15th November, 2016, a further notice was issued under Section 168 A of the new A&N Municipal Regulation of 1994 where the Ashora Bibi's land Survey being No. 873 was mentioned. It was alleged in this notice that there was further construction, additions and alterations made to the original unauthorized structure in violation of the 1994 Regulations and the subsequent byelaws framed in the year 1999. The earlier notice dated 9th December, 1991 was also referred to support the case of the Municipal Council that the original structure itself was illegal and unauthorized.

Demolition of the construction including additions and alterations made thereunder was ordered to be done within seven days failing which the Municipal Council took upon itself to effect the demolition. Notice was also issued giving opportunity to the petitioner Ashora Bibi to represent against the same and as to why the demolition ought not to be carried out.

The writ petitions do not indicate as to whether a representation was made there against or not. The Municipal Council was directed to produce all relevant records in respect of the said construction. Records have been produced. The records are also silent in this regard.

An order dated 31st March, 2014 was passed by the Secretary, Municipal Council, against a fresh show cause notice after the earlier notice dated 15th November, 2010 was set aside.

In the proceedings that culminated in the year dated 31st March, 2014, the petitioner was duly represented and made submissions and their stand was duly recorded.

The Secretary Municipal Council found that inspection was carried out by the Port Blair Municipal Council and a large number of deviations, illegalities were found in the construction existing thereon. What is clearly also found is that there was no sanction plan obtained for the building as it stood after construction, reconstruction, addition and alteration made from the original construction effected in prior to 1990.

Demolition was ordered. The inspection was carried out without notice to the Ashora Bibi and Khatija Bibi.

Against the said order of the Secretary, Municipal Council a first appeal was preferred being the FA No. 06 of 2014 to the Appellate Authority, being the Deputy Commissioner, South Andaman District. The said first Appellate Authority, after giving due notice and hearing to the parties, found that the appellants did not have any building plan approved by the Port Blair Municipal Council for the additions, alterations and reconstructions and yet effected construction.

In the mean time, WP No. 408 of 2015 was filed by one of the land owners namely Zohra Bibi and another writ petition being WP No.018 of 2017 was filed by Khatija Bibi against the Municipal Council challenging the order of the Municipal Council which were disposed of directing the aggrieved parties to approach the appropriate authority for variation or vacation and setting aside of the interim order of demolition dated 8th July, 2014.

The first appeal was filed after disposal of the said writ petitions. The Deputy Commissioner clearly found no reasons to interfere with the order passed by the Secretary, Municipal Council that the construction was completely illegal and made completely devoid of any sanctioned plan and in complete violation of the byelaws and rules of the Municipal Council and confirmed the order of the Secretary. The interim order of stay of demolition was modified and vacated and the order of the Secretary stood affirmed.

The order of the Deputy Commissioner was carried in second appeal being SA No. 4 of 2016 before the Lieutenant Governor. Before the Lieutenant Governor, it was urged that the notice dated 3rd August, 1990 issued to Ashora Bibi was under the 1957 Regulations and the order dated 6th April, 2006, and show cause notice dated 15th November, 2010 were issued under the 1994 Regulations. The said orders were illegal, according to Khatija Bibi and Ashora Bibi.

Earlier notices issued to the petitioners being Ashora Bibi and Khatiza Bibi were withdrawn and a fresh notices were found to have been issued under the applicable Regulations. The Lieutenant Governor also found continuous unabated violation of successive rules framed in 1954, 1994 and that 9 further illegal and unauthorized constructions were made even during the pendency of the proceedings between 1990 and October, 2016. Each of the constructions have been found without any authority, sanctioned plan and in total violation of the rules and byelaws of the Municipal Council. The appeals were dismissed by a detailed and reasoned order.

The Counsel for Ashora Bibi and Khatija Bibi would argue as follows against the three impugned orders.

(a) That since after an initial order of demolition and show cause notice of 1991, no steps were taken till the order of 2010 by the Municipal Council and hence such notice must be deemed to have been abandoned and could not have been acted upon and revived in the year 2010.

(b) The notice of the order 1991 was issued under the then existing 1954 Regulations of the Municipal Council which did not contain any by-laws or rules requiring a formal sanction of plan under any particular by-laws. There is a rule under the 1954 Regulations, that if after initial proposal submitted by the land owner is replied to and compliance is shown by the land owner and there is no further response for a period of two months from such date, there is deemed approval of the construction by the Board of the Municipal Council. There is, therefore, no illegality committed by the petitioner under Section 158(f) of the aforesaid 1954 Regulations.

(c) The notice of the order 2010 while referring Section 158(f) is itself without jurisdiction since it refers to the earlier abandoned notice issued under the 1957 Regulations. The authorities cannot proceed under two Regulations simultaneously since they could have proceeded under the 1957 Regulations in view saving clause under the 1994 Regulations.

(d) That the inspection was held without notice to the owners of the property in violation of the Rules of 1994.

(e) The first argument is repeated in different colour by the petitioner by submitting that the original show cause notice of the order 1991 apart from having been lapsed for not being pursued cannot be raised by reason of the law of limitation.

Let us deal with the said arguments.

There can be no dispute to the fact that the 1991 notice found that the construction made was illegal and unauthorized. There is nothing available on record either from the writ petitions filed by Khatija Bibi and Ashora Bibi that steps were taken to answer the show cause notice or that deemed approval of the original construction made prior to the order 1991 under the 1957 Regulations was entered at any stage of the proceedings. Once a constriction is deemed illegal the same cannot be regularized by any passage of time.

The building ought to have been demolished immediately thereafter by the Municipal Council. The inaction of the Municipal Council would not render an illegal construction lawful. Arguments (a), (b), (c) and (e) are answered as such.

In so far as the second argument is concerned i.e. with regard to the notices issued in 2010 under 1994 Regulations the mere reference to an earlier illegal construction cannot by or itself defeat the notice. It was not proposed in such notice of the 2010 that the building was liable to be demolished in pursuant to the said notice of 1991.

On the contrary, the provisions of Section 168(f) of 1994 Regulations were invoked, admittedly, in respect of further construction made on an existing illegal construction.

While it is true that the notice of 1991 was abandoned and fresh notice was issued which culminated in the order of Secretary of the Municipal Council dated 31st March, 2014, the mere reference to the illegality found in the year 1991 would not render the further unauthorised and illegal construction, lawful or the 2010notice without jurisdiction. It cannot also be said that a lapsed and/or expired notice of unauthorised and illegal construction was being revived in the year 2014. The notice of the year 2014 must be interpreted to refer to all illegal constructions made after 1991. In the process the council could also ascertain or to whether the original construction was lawful.

In so far as argument (d) is concerned this Court finds no prejudice demonstrated by the petitioners Khatija and Ashora at any stage before the authorities or in the pleadings in the writ petitions. It is now well settled that not every violation of rule of procedure or principle of natural justice would render an administrative order illegal. The party claiming violation must be able to demonstrate prejudice. No such prejudice has been demonstrated in the facts of the case or even in the oral arguments advanced.

The audacity of the two petitioners namely Ashora Bibi and Khatiza Bibi surprises this court. The said two persons were most likely emboldened of the fact that no steps were taken by the Municipal Council despite a blatantly illegal construction made by them in the year 1991 merely on the strength of the fact that the ancestor and predecessor-in-interest of father-in-law had come to these islands and occupied the land, albeit with the approval of the authorities in the year 1932. The said ladies may have presumed the islands to be their inherited properties.

In those circumstances, this Court finds that the order dated 31st March, 2014 by the Municipal Council was passed after having duly considered the submissions made on behalf of Ashora Bibi and Khatiza Bib. The said constructions were rejected with due reasons both in fact and law. The rampant further illegal and unauthorized construction have been made more than five in number during pendency of the proceeding only demonstrate that the gross and blatant disregard for law, rules and authority by the said Ashora Bibi and Khatiza Bibi and/or their successors-in-interest.

The said order has been upheld with sufficient reasons by the Deputy Commissioner in the order dated 22nd March, 2016 and by the Lieutenant Governor in the order dated 13th October, 2016.

The arguments advanced by the said Ashora Bibi and Khatiza Bibi are answered in no uncertain terms and rejected for the reasons and findings given hereinabove. It would be interesting to note as many as nine further constructions have been made during the pendency of the proceeding from the Secretary, Municipal Council all the way to the Lieutenant Governor.

It is not uncommon to notice a tendency of amongst violators of the law that the volume of the violations may be made to such extent that it would be difficult for authorities to remove such large scale violations and be forced to accept the same or a fait accompli. Such an attitude and state of mind breeds corruption and crime and must be nipped in the bund. One cannot ignore that no one is above the law. That which is illegal remains illegal no matter the volume of the illegality.

In those circumstances,this court has no hesitation in upholding the order of the Secretary, Municipal Council dated 31st March, 2014, the order of the Deputy Commissioner dated 22nd March, 2016 and the order of the Lieutenant Governor dated 13th October, 2016 not only on the findings therein but also the fact that the concurrent views taken by the three successive authorities.

It is now well settled that the writ court does not enter into the merits of the decision of the Administrative Authority. It is only a decision making process is tested. This Court finds no fault in the decision making process. There is no jurisdictional error on the part of the statutory authorities.

In those circumstances, the writ petition and other proceedings that have occurred as carried by Ashora Bibi and Khatiza Bibi in appeal in MAT 402 of 2017 need not be referred to in detail since the Division Bench in the said judgment has only directed the writ petitions to be taken up expeditiously by a Single Bench and hence the aforesaid order dealt with three writ petitions as a whole. WP 272 of 2016 (Smt. Zohra Bibi and another - vs- The Andaman & Nicobar Administration and others) is hereby allowed. The Municipal Council shall forthwith carryout demolition of nine illegal constructions preferably within a period of one month from date. The cost of demolition shall be recovered from the said Ashora Bibi and Khatija Bibi as arrears of land revenue by the Municipal Council under the applicable law and through appropriate authority.

WP 423 of 2016 and WP 481 of 2016 shall stand dismissed. There shall be costs assessed at Rs.51,000/-payable by the said Ashora Bibi and Khatiza Bibi to the Municipal Council towards litigation costs apart from the actual costs incurred by the Municipal Council effected for demolition.

Mr. Binnu Kumar, learned counsel for the petitioners in WP 423 of 2016 and WP 481 of 2016 prays for stay of operation of this order. The said prayer is opposed by the Counsel for the petitioner in WP 272 of 2016. The prayer and counter is considered and the prayer for stay is declined.

Urgent Xerox certified server copy of this order, if applied for, be supplied to the Learned Counsel for the parties upon compliance of usual formalities.