Fathima Bibi v. The Andaman Nicobar Administration And ORS

IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction Appellate Side [ CIRCUIT BENCH AT PORT BLAIR ] ...

WPA/319/2022 Fathima Bibi ... Petitioner Vs.

The Andaman and Nicobar Administration and others ... Respondents Mr. Subhabrata Datta ... for the petitioner [on virtual mode] Mr. V. D.Sivabalan ....for the respondents August 24, 2022 [SR] Item No.8 Learned counsel appearing for the petitioner places an order passed by a learned Judge dated 5th August, 2022 by which the respondent authorities were restrained from taking further steps in relation to an order of demolition passed by the Superintending Engineer (Municipal Council) pursuant to an order passed by the First Appellate Authority dated 25th July, 2022. The interim protection was given till 18th August, 2022.

Counsel appearing for the petitioner submits that an order passed by a learned Coordinate Bench reflects that the Deputy Commissioner of District of South Andaman passed the order dated 25th July, 2022 as the First Appellate Authority. Admittedly, the Deputy Commissioner was also the Secretary of the Port Blair Municipal Council and passed an order dated 6.8.2019 to the same effect, namely demolition of the concerned premises.

This Court is fully in agreement with the view taken by the learned Judge that the Deputy Commissioner cannot be a judge in his own cause. The contention of learned counsel for the Administration that the petitioner is entitled to go up in second appeal before the Administrator is not acceptable since the petitioner cannot be forced to lose a forum in her quest for justice.

Hence, the alternative suggestion made on behalf of the Administration is accepted.

The Secretary, Urban Development, Andaman and Nicobar Administration, should be treated as the First Appellate Authority in the present case. This suggestion is fair and addresses the inherent apprehension of bias in the facts of the case. This Court is accordingly of the view that until the petitioner avails of the First Appellate Forum before the Secretary, Urban Development, Andaman and Nicobar Administration, the interim order dated 5th August, 2022 should continue till one week from the filing of the appeal by the petitioner. The order dated 25th July, 022 is set aside. The Secretary, Urban Development, Andaman and Nicobar Administration shall take all necessary steps to dispose of the appeal filed by the petitioner as expeditiously as possible. WPA/319/2022 is disposed of in terms of the above. Since affidavit-in-opposition have not been called for, the allegations made in the writ petition are deemed not to have been admitted.

( Moushumi Bhattacharya, J.)