Smti.Ajay Kumari v. The Port Blair Municipal Council And ORS.

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] *** CO/2/2025 Smt. Ajay Kumari Vs The Port Blair Municipal Council and others Mr. KMB Jayapal ... for the petitioner/plaintiff Mr. Rakesh Kumar ... for the respondent Nos. 1 & 2 Mrs. Anjili Nag, Sr. Adv.

Mr. Ajay Majhi ... for the respondent No.3/ opposite party January 20, 2025 [AKB] Item No.2 The present revision application has been preferred by the petitioner/plaintiff. The petitioner has approached this court under Article 227 of the Constitution of India being aggrieved by and dissatisfied with the order dated 03.01.2025 passed by the learned District Judge, Andaman and Nicobar Islands passed in Miscellaneous Appeal No. 28 of 2024.

Through the present revision application the petitioner has stated that the petitioner/plaintiff is in occupation of a portion of single storied semi timber structure standing on plot situated in the survey no. 58/1/P classified as house site within village Haddo under Port Blair Tehsil, District South Andaman. The petitioner has stated that the property has been purchased on the basis of an oral purchase affected between the husband of the petitioner plaintiff since deceased and the father of the private respondent namely Brij Mohan Giri since deceased. The petitioner further stated that she is residing in the said dwelling house along with her mentally retarded son.

It has been further stated that the dwelling house is neither in ruinous state nor in under dangerous condition on the contrary it is in habitable condition and the respondent no. 3 in whose name the said property is presently wrongly recorded being unable to evict the petitioner from the said house has taken unscrupulous ways being in hand in glove with the respondent nos. 1 & 2 has served notice stating that the said dwelling house will have to be dismantled being in ruinous state.

has also been stated that according to Section 132 of Andaman and Nicobar Island (Municipal Council) Regulation, (hereinafter to be referred to as the 1994 Regulation) the Secretary Port Blair Municipal Council has no jurisdiction to issue a notice in this regard and as per Section 22 of said Regulation the said power has not been delegated to the Secretary by the said Council. It has also been stated that the notice in the form of final order being F.No. 16-52/BID/BO/US/MC/1721 dated 09.01.2024 has been issued by the Secretary, Port Blair Municipal Council having no jurisdiction at all. It has further been stated that there is no need of concern as regards to safety of general public. Through the application it has further been stated that the petitioner/plaintiff had approached the Hon'ble court challenging the notice F.No.

1652/BID/BO/US/MC/1721 dated 09.01.2024 issued by the Secretary, Port Blair Municipal Council by way of a writ petition being WPA no. 48 of 2024 which was disposed of on 06.02.2024 and the Coordinate Bench of the Hon'ble Court after considering the report dated 02.02.2024 was pleased to direct the Secretary to take decision in the matter and the petitioner was given the liberty to file exception to the said report. It has further been stated that during the pendency of the writ petition vide order dated 18.01.2024 the Hon'ble Coordinate Bench has been pleased to grand liberty to the petitioner to carry out repair of the said premises in question which the petitioner carried out. It has further been stated that the petitioner on 08.07.

2024 filed an exception to the report before the respondent authorities raising all legal grounds to discard such report and finally the Secretary vide order no. 3734 dated 07.10.2024 passed order directing the dismantling of the dwelling house of the petitioner/plaintiff and on her failure to do so it has been directed to be implemented through the agency of the Municipal Council. It has been contended that the order dated 07.10.2024 is not sustainable in the eye of law as because while passing the order dated 06.02.2024 in writ petition being WPA No. 48 of 2024 the Municipal Council had been directed to pass reasoned order which has not been done. It has also been stated that the Secretary of the Municipal Council is merely an employee and the power to take major decisions does not lie upon him.

It has further been stated that the petitioner/plaintiff further challenged the order no. 3934 dated 07.10.2024 passed by the Secretary, Municipal council before the Hon'ble Court through a writ petition no. 613 of 2024 and the said writ petition has been disposed of on 12.11.2024 whereby the Hon'ble Court granted 15 days time to file suit. As such, suit has been preferred before the Civil Judge Senior Division Port Blair being Other Suit no.

repair of the dwelling house and also filed an application praying for injunction to protect possession of the plaintiff over the suit land including dwelling house standing thereon during the pendency of the suit. The respondent no. 3 being the defendant no. 3 contested the application for injunction by filing written objection. The said prayer for injunction as sought for by the petitioner/plaintiff has been rejected on the solitary ground that the order dated 07.10.2024 passed by the respondents/defendants no. 1 & 2 is amenable to appeal. The petitioner assailed the order no. 3 dated 03.12.2024 passed in the Other Suit no. 100 of 2024 by the learned trail court by preferring an appeal before the first appellate court i.e. the District Judge, Andaman & Nicobar Islands being Misc. Appeal no.

28 of 2024 and after hearing the petitioner/plaintiff and the respondents/defendants the appellate court passed the impugned order dated 03.01.2025. Through the said order dated 03.01.2025 the appellate court dismissed the appeal and affirmed the order no. 03. Dated 03.12.2024 passed in the Other Suit no. 100 of 2024.

Being aggrieved by the said order the petitioner plaintiff has preferred the present revision under article 227 of the Constitution of India.

The learned counsel representing the petitioner/plaintiff has embarked upon the issue that the petitioner is a helpless lady residing along with his mentally challenged son and the husband of the petitioner has purchased the suit property i.e. the dwelling house through an oral purchase having purchased from the father of the present respondent no. 3 in whose name the suit property is presently recorded. The learned counsel has further submitted that being unable to evict the petitioner/plaintiff from the suit property and being unable to obtain vacant possession of the dwelling house the respondent no.3 has adopted unscrupulous methods and in connivance with the respondents no. 1 & 2 has issued notice dated 09.01.2024 directing to remove and dismantle the house.

He has further submitted that the said notice has been issued by the Secretary, Municipal Council who under the provision of Section 132 of the 1994 Regulations does not have the jurisdiction to issue the same, as such, the said notice had been challenged through the first round of litigation wherein the Hon'ble Coordinate Bench had been pleased to allow the petitioner to repair the said dwelling and accordingly the said dwelling house has been repaired by the petitioner. During the proceedings of the said writ petition an inspection report as regards to the structure was sought for and ultimately the first round of litigation was disposed of by directing the Secretary to dispose of the same after hearing the petitioner.

dismantled. Against the said order the petitioner/plaintiff once again approached the Hon'ble Court through the second round of litigation being WP 613 of 2024. The said second writ petition was disposed of by a Coordinate Bench of this Court granting liberty to the petitioner to file suit against the landlord. He further submitted that accordingly the petitioner filed the suit seeking declaration and injunction in which the learned trial Judge has without interpreting the provision of law has rejected the prayer of the petitioner. Against the said order passed by the learned Civil Judge Senior Division at Port Blair in O.S. 100 of 2024 the petitioner approached the learned District Judge preferring a miscellaneous appeal being Misc. Appeal no.

28 of 2024, wherein the learned District has also misinterpreted the provision of the 1994 regulations and has dismissed the misc. appeal on contest. Being compelled the petitioner has preferred the instant civil revision under Article 227 of the Constitution of India seeking relief that the notice dated 09.01.2024 issued by the Secretary, Municipal Council is not in accordance with law and the secretary has acted beyond his jurisdiction as such the notice for dismantling is not to be given effect to.

Banking upon the facts and circumstances the learned counsel has sought for allowing the present civil revision. Mrs. Anjili Nag, learned Senior counsel representing the respondent No. 3 vehemently opposed the submission of the learned counsel representing the petitioner by submitting that the said structure in question is in dilapidated and ruinous condition and is to be immediately dismantled otherwise it may at any time cause concern for human life and safety endangering public property. The learned senior counsel further submitted that the notice issued by the Secretary, Municipal Council is in accordance with law and is to be abided by. Banking upon the aforesaid facts and circumstance learned counsel has prayed for dismissal of the present revision application.

The learned counsel representing the respondent nos. 1 & 2 i.e. the Municipal Council and its secretary reiterated the facts submitted by the learned senior counsel representing the respondent no. 3 and stated that the notice has been rightly issued by the Secretary, Municipal Council and the structure is in ruinous state and prays for dismissal of the present civil revision. From the contentions of the adversaries and the submission of the learned counsels it is clear that the moot point for consideration is as to whether the prayer for injunction has been in accordance with law.

On going through the notice dated 09.01.2024 it transpires that the notice has been issued by the Secretary, Municipal Council who according to the provision of the 1994 Regulation is

the competent authority to issue notice as regards to dismantling of buildings. Regulation 132 of the 1994 Regulation is laid down which is as follows:

"132. If in any municipal area any building, wall or structure or anything affixed thereto, or any bank or tree, is deemed by the Municipality to be in a ruinous state or in any way dangerous, the Municipality, may, by notice, require the owner thereof forthwith either to remove the same or to cause such repairs to be made to the building, wall structure or bank as the Municipality may consider necessary for the public safety, and, if the requirement of such notice is not complied with, the Municipality shall forthwith take, at the expense of the owner, any steps which it thinks necessary for the purpose of averting imminent danger."

On plain reading it transpires that the municipality has the authority to take steps for removal of buildings which are in dangerous state or in ruinous state. As per Regulation the Secretary has the power to issue direction for removal or repair of the building which is in dangerous or ruinous state. Herein the Secretary has issued the notice dated 09.01.2024 as such there is no lack of jurisdiction as regards to issuance of notice. During the first round of litigation an inspection report was sought for and after inspection a report dated 02.02.2024 was filed by the Executive Engineer (Plg), PMBC stating the following: "An alarming finding is that, under sever cyclonic conditions, the building on site is deemed incapable of withstanding such weather events.

This poses an imminent threat to the lives of the residents, as well as the risk of substantial property damage." The Secretary, Municipal Council after hearing the petitioner passed and order dated 07.10.2024 whereby stating the following: "You are hereby directed to remove/dismantle the single storied semi timber structure within a period of 07 days from the date of the receipt of this order and failing which demolition order will be carried out by the Municipal Council at your risk and cost." Against the said order being 3934 dated 07.10.2024 passed by the Secretary, Municipal Council the petitioner preferred writ petitioner being WPA/613/2024. A coordinate bench of this Hon'ble Court after hearing the contentions of the parties disposed of the writ petition by passing the following order: "... 4.

In those circumstances, since the impugned order has been passed by the Secretary, PBMC after complying with the principles of natural justice and there is no perversity therein, this Court is not inclined to interfere with the order of the Secretary, PBMC dated 07.10.2024.

5. The petitioner may seek remedies available under the law in respect of his grievances.

6. Mr. Jayapal, learned counsel for the writ petitioner seeks interim protection till such time so that he would be able to file a civil suit against her landlord to pursue to effect repair of the premises. The impugned order shall not be implemented for a period for 15 days from date."

On bare reading of the said order passed during the second round of litigation it is evident that the coordinate bench of this Hon'ble Court had been pleased to grant interim protection to the writ petitioner to file a civil suit against her land lord to pursue to effect repair of the premises only. Instead of seeking repair or praying for repair the petitioner has filed a suit before the Civil Judge Senior Division praying for declaration and injunction. This was not the intention of the Hon'ble Coordinate Bench and the learned Trial Court had rightly rejected the prayer for temporary injunction under Order XXXIX Rules 1 and 2 of the code of Civil procedure rightly on the ground that the plaintiff has not challenged the order dated 07.10.2024 passed by the Secretary, Municipal Council before its appellate forum.

The learned District Judge has also been pleased to dismiss the miscellaneous appeal on the ground that no document has been produce before the Municipal authority to show that the inspection report is not true and the structure is not in dilapidated condition. Thus this court finds that the inspection being not challenged the petitioner has accepted the same wherein it has been stated that the structure possesses an eminent threat to the lives of the residents as well as the risk of substantial property damage. It is pertinent to mention that the Hon'ble Coordinate Bench had been pleased to grant interim protection for fifteen days giving opportunity to the petitioner to file a civil suit against her land lord to pursue to effect repair of the premises only.

On the contrary the petitioner filed a civil suit for declaration and permanent injunction which was not the intention of the Hon'ble Coordinate Bench while disposing of the second round of writ in WPA/613/2024.

It is worth mentioning that while disposing of the second round of litigation being WPA/613/2024 the Hon'ble Coordinate Bench has been pleased to find that since the impugned order has been passed by the Secretary, PBMC after complying with the principals of natural justice and there being no perversity the court is not inclined to interfere with the order of the Secretary, PBMC dated 07.10.2024.

Having the aforementioned discussion this Court is not inclined to interfere with the impugned order. Thus the civil revision is dismissed.

(Supratim Bhattacharya, J.)