Smti Savitri Xaxa v. Subhash Beck And ORS
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR *** MAT/1/2023 IA No.CAN/1/2023, CAN/02/2023, CAN/05/2023 Savitri Xaxa Vs.
Shri Subash Beck and others Mr. K. Vijay Kumar ... for the appellant Ms. Anjili Nag .... for the PBMC Mr. Rakesh Pal Gobind ... for the respondent no.1 March 23, 2023 [SR] Item No.2 In this appeal, an interim order was passed on 3rd March, 2023 staying the work of demolition of structure in respect of an immovable property.
The appellant had mentioned the appeal before this Court for extension of the interim order, which is in existence till March, 31, 2023.
Ms. Anjili Nag, learned counsel appeared for the Port Blair Municipal Council, who had issued the provisional demolition order, being the subject matter in this appeal. After hearing the counsel appearing for the parties, this Court thought it fit to take up and dispose of this appeal on the basis of the existing records. This Court had called for the original writ records lying with this Court, which was placed before this Court.
Ms. Anjili Nag, learned counsel had placed the original file of the Municipal Council relating to the subject matter of this case before this Court. On the basis of the said records, we proceeded to dispose of this appeal.
One Shri Micheal Xaxa was the original occupier in respect of the immovable property mentioned in paragraph 6
to the stay application filed in this appeal by the appellant. The said Micheal Xaxo died on June 13, 1976. The present appellant is an heir and legal representative of the said Micheal Xaxo (since deceased), who claimed to be a present beneficiary of right in respect of the said immovable property. The respondent no.1 had lodged a complaint dated January 13, 2022 before the relevant Municipal Council describing himself as the adjacent property occupier and complained that on the subject plot of land, as mentioned in paragraph 6 of the stay petition, the legal heirs of the said Micheal Xaxo, since deceased, had caused construction de hors the plan and beyond the plan sanctioned by the relevant Municipal Council. On the basis of the said complaint, which we had perused from the original records of the Municipal Council, the Municipal Council passed a provisional order for demolition dated April 12, 2022 at page 62 of the stay petition.
Challenging the said provisional order for demolition, the legal heir of the Micheal Xaxa ( since deceased) preferred a statutory appeal before the Deputy Commissioner, South Andaman District.
At that juncture, the writ petitioner, being the first respondent herein, filed the writ petition being WPA/200/2022, for implementation of the said provisional order for demolition. In the said writ petition, the legal heirs of Micheal Xaxa (since deceased), including the appellant before us today, were not impleaded.
By an order dated December 13, 2022, the said writ petition was disposed by the Hon'ble Single Bench allowing the Municipal Council to carry out the demolition of the unauthorized construction mandatorily and positively within a period of three weeks from that date. The said order of the
writ court dated December 13, 2022 is available at page 71 to the stay petition.
Being aggrieved by the said order passed by the Hon'ble Single Judge dated December 13, 2022, after obtaining leave to file this appeal, the legal heir of Micheal Xaxa (since deceased) filed the instant appeal. Meanwhile, on August 05, 2022, the final order for demolition was passed by the appropriate authority of the Municipal Council, at page 65 to the stay petition. From the original records produced by the Municipal Council, it appeared that the said order for final demolition was passed upon giving a due prior notice to the legal heirs and in their presence. The legal heir of Micheal Xaxa (since deceased), being the appellant before us had duly participated in the relevant hearing. The present appellant had put her signature on the attendance sheet before the relevant authority of the Municipal Council at the time of hearing and the said final order of demolition dated August 05, 2022, at page 65 to the stay petition, was passed.
Mr. K. Vijay Kumar, learned counsel appearing for the appellant, being a legal heir of Micheal Xaxa (since deceased) had submitted that, the order in the writ petition was passed behind the back of the appellant and/or legal heirs of Micheal Xaxa ( since deceased), since they were not at all impleaded in the writ petition. Inasmuch as, the provisional order for demolition dated 12th April, 2022 is pending for consideration before the statutory appellate authority, namely, the Deputy Commissioner, South Andaman District. The final order of demolition dated August 5, 2022 was in continuance of the said provisional order for demolition, which is under challenge.
Learned counsel for the appellant submitted that, in such situation, the Municipal Council ought not to have
passed the final order for demolition as the provisional order is under challenge.
Learned counsel for the appellant further challenged the locus of the writ petitioner, namely, the respondent no.1 herein, contending that, he had no right to instigate the Municipal Council to demolish the construction at the subject immovable property of which the appellant is the occupier and the respondent no.1 had no nexus whatsoever with the cause pursued in the writ petition. He further submitted that, under the provision of the relevant bye-law, thirty days was mandatory period to be given before issuing the final order for demolition and the same should have been initiated through a show cause. Such provisions were also not complied with.
Ms. Anjili Nag submitted that, before passing the final order for demolition, a notice dated July 07, 2022 was duly served upon the legal heirs of Micheal Xaxa (since deceased) including the appellant herein. The said notice is available at page 64 to the stay petition. Pursuant to such notice, the appellant had duly participated in the hearing and made her submission opposing the entire action for demolition taken by the Municipal Council. The appellant had put her signature on the attendance sheet showing that she had duly participated in the hearing and adequate opportunity of hearing was granted to her before passing the final order dated August 05, 2022, at page 65 to the stay petition.
She further submitted that, it is an admitted position that the final order for demolition dated 5th August, 2022 had not been challenged in any way by the legal heirs of the Micheal Xaxa (since deceased) including the appellant.
the Municipal Council can proceed for demolition on the basis thereof.
After considering the rival submissions of the parties and on perusal of the materials on records, it appeared to this Court that from the original records produced by the Municipal Council, the complaint dated January 13, 2022 lodged by the first respondent herein, clearly mentioned in paragraphs 1 and 2 thereunder that, the complainant is the adjacent resident to the subject plot.
In view of the law settled that such an adjacent resident of a plot, definitely has a right to lodge a complaint before the Municipal Council authority, if, according to him, unauthorized structure comes up on his adjacent plot. In the event, such a complaint is lodged, then, it becomes the obligation of the Municipal Authority to cause the necessary enquiry to take steps strictly in accordance with law. Hence, this Court is of the firm view that the complainant, being the respondent no.1, had locus to lodge a complaint alleging the unauthorized construction on the subject land and he had locus to move this Court in its writ jurisdiction.
In so far as, the demolition order and the decision for demolition taken by the Municipal Council, it appeared to this Court that, the appropriate authority after causing necessary formalities and duly applying its mind, had passed the provisional demolition order on April 12, 2022. It is true that the appellant had challenged the said provisional order for demolition, which is pending before the statutory appellate authority without any order being passed thereupon.
At that juncture, after giving due notice of hearing dated July 07, 2022 at page 64 to the stay petition and on
due participation of the appellant in the relevant hearing and after affording her adequate opportunity of hearing, the said final order for demolition dated August 05, 2022 was passed, at page 65 to the stay petition. It is also an admitted fact that the appellant had not challenged the said final order for demolition in any manner. This final order for demolition remains with its force and applicability.
The said final order for demolition dated August 05, 2022, is not being the subject matter of this appeal as this was not the subject matter in the writ petition. The appeal being continuation of the original proceeding, this Court is of the firm view that, no cognizance can be taken as to the validity or enforceability of the said final order for demolition dated August 05, 2022, in absence of any challenge thereto. The provisional order for demolition had merged with the said final order for demolition.
In view of the foregoing discussions and reasons, this Court disposes of this appeal without any interference with the impugned order dated December 13, 2022, since there is no reason to interfere with it any further.
The interim order passed in this appeal stands vacated. It is made clear that the Municipal Council may proceed with the said final order for demolition dated August 05, 2022 at page 65 to the stay petition strictly in accordance with law, since there has been to fetter on it.
Accordingly, this appeal MAT/1/2023 with all connected applications stands disposed of, without any order as to costs.
( Abhijit Gangopadhyay, J. )
( Aniruddha Roy, J. )