Fathima Bibi v. The Port Blair Municipal Council And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

WPA/42/2022 Fathima Bibi ... Petitioner Vs.

The Port Blair Municipal Council and others ... Respondents Mr. Subhabrata Datta Mr. Aranya Saha ... for the petitioner Mr. Shatadru Chakraborty ... for the Administration Mr. Purohit Mohan Lal ... for the respondent No.6 April 21, 2022 [GNC] Item No.17 The writ petitioner claims to be a neighbour of the respondent No.6. It is alleged that the respondent No.6 has raised some construction on the land bearing survey No. 2421/4, situated at South Point Village, within Ward No.10 of Port Blair Municipal Council.

The petitioner seeks demolition of the structures upon implementation of the notice issued under section 168(a) of the Andaman Nicobar Islands (Municipal) Regulation 1994, by the Executive Engineer (Planning), Municipal Council. Learned Advocate for the Administration submits that the Port Blair Municipal Council would be the appropriate authority to take steps in this regard.

Learned Advocate for the respondent No.6 submits that the notice dated November, 16, 2021 is not an order of demolition and hence, the writ petition praying for effecting an order of demolition, on the basis of such notice, is not maintainable. The authorities have not yet come to any finding with regard to the alleged demolition.

Heard the learned Advocates for the respective parties. It appears that upon finding certain violations having been committed by the respondent No.6, the Executive Engineer (Planning), Port Blair Municipal Council, issued a notice under section 168(a) of the Regulation of 1994.

The respondent No.6 was informed that some semi- RCC timbered structure has been constructed by the respondent No.6 without any approval from the Council. The respondent No.6 was asked to demolish the said structure forthwith and/or showcause within seven days from the date of receipt of the notice as to why steps shall not be taken in respect of such construction. It is submitted by the respondent No.6 that an answer to the said notice has already been filed.

This court is of the view that before any final decision is taken with regard to the alleged un-authorised construction, the authorities are required to hear the person responsible for such construction and then pass necessary orders in accordance with law. The notice can, at best, be a prima facie finding with regard to the un-authorised construction, but the final order must be passed upon hearing the person responsible for such construction and thereafter demolition can be effected in accordance with law.

Under such circumstances, the writ petition is disposed of with a direction upon the Executive Engineer (Planning), Port Blair Municipal Council, to cause an inspection of the premises in question in presence of the respective parties upon giving 48 hours prior notice and prepare an inspection report indicating the nature and extent of the alleged un-authorised construction

if any. A rough sketch map shall also be annexed to the report. Such report shall be handed over to the parties. The parties are at liberty to file their written submissions and also pray for compounding of minor deviation, if permissible under the law with regard to the contents of the report. The parties shall be allowed to appear at the hearing and adduce both oral and documentary evidence. Thereafter, necessary orders shall be passed with reasons and communicated to the respective parties. Needless to mention, that if any unauthorized construction is detected, the entire proceeding so initiated on the basis of the notice dated November 16, 2021 shall be reached to its logical conclusion within a period of three months from the date of communication of this order.

The court does not enter into the merits of the claims and counter-claims of the parties and the entire issue shall be decided, in accordance with law and independently. This order shall not be construed as a declaration of the right of the respondent No. 6, to have any construction regularized. (Shampa Sarkar, J.)