Shri. Rajesh Xess And ORS v. The Andaman And Nicobar Administration And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/138/2025 Shri Rajesh Xess and Others Vs.

The Andaman and Nicobar Administration and Others Mr. Sandip Kumar De Mr. Pardeshia Munda ... for the petitioners Mr. Shatadru Chakraborty Mr. Rakesh Kumar Mr. Dibesh Dwivedi ... for the PBMC Ms. Dolly Sarkar ... for the private respondent (On behalf of Mr.Arul Prasanth) March 17, 2025 [AKB] Item No.2 1.

Affidavit - of - service filed in Court is taken on record.

2.

This writ petition has been filed, inter alia, challenging the order dated 1st March, 2025 passed in First Appeal No. 29 of 2024 by the appellate authority (Municipal) being the Deputy Commissioner, South Andaman.

3.

To understand the scope of the writ petition it is relevant to note down the facts leading to the institution of the same. The petitioners claim to have acquired interest by way of purchase an area 162.50 Sq.mtrs., in survey plot No. 1074/3, out of the total area of 904 Sq.mtrs., in the said plot, situated at Junglighat village under Port Blair Tehsil which has been classified as

House Site. According to the petitioners, the petitioners had inconsonance with the Andaman and Nicobar Islands (Municipal) Regulation, 1994 (hereinafter referred to be said Regulation) had applied for sanction, for construction of a building. Such fact would corroborate from the sanction accorded by the Port Blair Municipal Council in favour of the petitioners on 20th June, 2014. 4.

Pursuant to and in terms of the aforesaid sanctioned building plan, the petitioners claim to have constructed a two storied building in the year 2016 and had also obtained electricity connection at the House Site on 21st March, 2017. Though according to the petitioners' the construction of the house was completed in the year 2016 itself and no further construction has been undertaken by the petitioners, however, on 26th February, 2019 the petitioners were served with a stay order issued by the Executive Engineer (PIG) Port Blair Municipal Council directing halting of ongoing construction. The record would reveal that in connection with an alleged non action on the part of the municipal authorities to adhere to a complaint of unlawful construction, the private respondent had moved this Court whereupon a Coordinate Bench of this Court by an order dated 1st August, 2024 was inter alia pleased to direct the authorities to take due action against the construction upon giving opportunity of hearing to all concerned. Pursuant to and in terms of aforesaid order

the municipal authorities upon giving notice of hearing to the petitioners had decided the same and by order dated 20th August, 2024 had categorically come to a finding that the petitioners had constructed the building in violation of the sanctioned building plan. The details of the deviation were also identified in such order. Accordingly, the petitioners had been directed to demolish the un-authorized portion.

5.

After the above order was passed the petitioners had applied before the authorities for revision of the existing sanctioned building plan granted in their favour. The petitioners would complain that no decision has been taken on the basis of such application for revision of the sanction building plan.

6.

In the interregnum however, being aggrieved with the order dated 20th August, 2024 the petitioners had preferred an appeal before the appellate authority. The appellate authority by an order dated 1st March, 2025 taking note of the submissions made by the petitioners had come to the finding that the Municipal Council having surveyed the un-authorized construction and having found that the building violates the Regulations on plot coverage, FAR, height and setbacks had while upholding the order, dismissed the appeal.

7.

Mr. Sandip Kumar De, learned Advocate appearing on behalf of the petitioners by drawing attention of this Court to the sanction plan would submit that the

sanction initially granted was in respect of plot No. 1074/3. However, the alleged inquiry has been conducted in respect of Survey plot No. 1074/3/2. This according to him is a glaring inconsistency and goes the very root of the jurisdiction of the authority to pass an order of demolition.

8.

Independent of the above by drawing attention of this Court to the provisions of Regulation 162 of the said Regulation, he would submits that the petitioners have a legal right to challenge the decision regarding the non consideration of grant of permit/sanction plan which, inter alia, includes a prayer for revision of the sanction plan and is also entitled to the benefit of regularization in terms of the second proviso to Regulation 168. 9.

These aspects have absolutely not been considered by the appellate authority. He submits that the petitioners cannot be denied the opportunity to challenge a decision by the respondents not to revise the sanction plan. Admittedly, in this case since, the respondents did not decide on the application for revision of the sanction plan, the petitioners had denied the benefit to challenge the same. In the facts as noted above he submits that this Court may be pleased to set aside the order and remand the matter for a fresh decision on merits. 10.

Mr. Dibesh Dwivedi, learned Advocate appearing on behalf of the Port Blair Municipal Council, however, submits that all aspects in the matter had been

considered. Admittedly, the petitioners had carried out construction in violation of the sanction building plan. It is only when that the authorities had identified the deviations that the petitioners belatedly, as and by way of an afterthought filed an application seeking revision of the sanction building plan. The matter has been rightly rejected by the appellate authority. There is no scope for interference.

11.

Heard the learned advocates appearing for the respective parties and noted the materials on record. Admittedly in this case the petitioners had acquired the interest in plot No. 1074/3. Subsequently, the petitioners applied for sanction building plan. The Municipal Authorities on the basis of the petitioners' application had accorded sanction for construction of a double storied residential building at plot No. 1074/3 situated at Junglighat village. The said sanction was valid by two years i.e., from 20th June, 2014 to 19th June, 2016. 12.

Although, the petitioners' claim to have constructed the building strictly and in consonance with sanction building plan, however, later at the instance of the private respondent and on the intervention of a Coordinate Bench of this Court the authorities had initiated an inquiry which culminated in the order dated 20th August, 2024. From the perusal of the aforesaid order it would transpire that there have been serious deviations in construction of the residential building. It is

only after such order was passed that the petitioners appear to have applied before the authorities for revision of the sanction building plan. Simultaneously, an appeal was also filed which culminated in the order impugned. 13.

I find that the petitioners had disclosed a record of rights issued in Form 'F' wherefrom it would transpire that the property in question had been mutated in the name of the petitioners and is recorded as Survey No. 1074/3. Incidentally, the proceedings had been initiated in respect of plot No. 1074/3/2. Although, as submitted by Mr. Dwivedi, in ordinary course the plot may have been re-numbered, however, the record of rights as produced by the petitioners does not substantiate the same.

14.

Be that as it may there is another aspect of the matter which requires consideration. Admittedly, the Regulations permit regularization to the extent provided for in the second proviso to Regulation 168. Although, the appellate authority appears to have noted in its order that the violations are non-compoundable violations, however, no details have been indicated especially when the violations are not only in respect of the ground floor but the first, second and third floor as well. 15.

Having regard thereto I am of the view that at this stage it would be only appropriate to remand the matter back to the appellate authority for a decision on the merits having regard to the points noted hereinabove.

16.

In view thereof, the order dated 1st March, 2025 is set aside and the matter is remanded back to appellate authority. The appellate authority is directed to hear out and dispose of the appeal on remand as expeditious as possible, preferably within a period of eight weeks from the date of communication of this order.

17.

It is made clear that the service of notice on the petitioners' advocate by the appellate authority would constitute service of notice on the petitioners. However, seven days clear notice must be given.

18.

With the above observations and directions, the writ application WPA 138 of 2025 is disposed of. 19.

There is no order as to the costs.

20.

Urgent Photostat certified copy of this order if applied for, the same be supplied to the parties upon compliance of necessary formalities.

( Raja Basu Chowdhury, J. )