Shri Kanailal Biswas v. The Deputy Commissioner (North And Middle Andaman) And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

WPA/501/2023 Shri Kanailal Biswas ... Petitioner Vs.

The Deputy Commissioner (North and Middle Andaman) and Ors. ... Respondents Mr. Ananda Halder ...for the Petitioner Mr. V.D. Sivabalan Mr. Arun S. Kumar ... for the Respondent Nos.1-3 Mr. Alokesh Sarkar ...for the Respondent No.4 June 21, 2023 [ M.A.Mobin] Item No. 9 This Writ application has been filed under Article 226 of the Constitution of India seeking a direction upon the respondent no.1 to initiate proceeding under Rule 165 of Andaman & Nicobar Islands Land Revenue and Land Reforms Rules, 1968 for not leaving any set back as well as violation of Section 9 Sub-section 4 of Andaman & Nicobar Islands Town and Country Planning Regulation, 1994 against private respondent no.4.

The brief fact of the case is that the petitioner is the recorded holder of land under holding no.374 and plot no.19/3 measuring more or less 0.0766 hectors of land. The respondent no.4 is the adjacent owner of Plot No.19/2/2, holding no.757. The respondent no.4 has undertaken work of construction of multi storied RCC building without leaving the requisite space of one meter

from the common boundary as per existing rules resulting in violation of setback rules. On the complaint of the petitioner survey was held and as per the report of the surveyor there is a setback violation on the western side. Since after such report of violation, no proceeding has been initiated at the instance of the Deputy Commissioner, North & Middle Andaman District the petitioner has filed the present Writ application for proper relief.

Mr.

Ananda Halder, learned Counsel for the petitioner submits that as per Rule 165 of the Andaman & Nicobar Islands Land Revenue & Land Reforms Rules, 1968 every adjacent plot owner at the time of construction has to leave one meter space from the common wall. However, respondent No.4, who is the adjacent plot owner to the land of the petitioner has not left the requisite space resulting in violation of setback rules. Although upon complaint of the petitioner report has been submitted by the Surveyor but till date no such proceeding has been initiated by the Deputy Commissioner in accordance with law. He submits for passing necessary order directing the respondent no.1 to initiate proceeding in terms of Rule 165 of the Andaman & Nicobar Islands Land Revenue & Land Reforms Rules, 1968 against respondent No.4.

Mr. Arun S. Kumar, learned Counsel for the respondent nos. 1 to 3 at the first instance submits that the present Writ application is not maintainable since as per Section 28 of the Andaman & Nicobar Islands Land

Revenue and Land Reforms Regulation, 1966 an appeal lies from the order of the Tehsilder. He further submits that the documents annexed to the Writ application relates to one Amal Biswas and three others and there are no such documents on record of the petitioner showing his representation made before the authority concerned for taking appropriate steps in respect of the alleged violation. In the light of his aforesaid submission, he prays for dismissal of the Writ application.

Mr. Alokesh Sarkar, learned Counsel appearing for the respondent no.4 adopts the submission advanced on behalf of the respondent nos.1 to 3.

With regard to the issue of maintainability in reference to Section 28 of the Andaman & Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 it is not in dispute that any such order has been passed by the Tehsildar in respect of the application of the petitioner. Thus, the question of filing appeal does not arise. For such reason the argument advanced with regard to the maintainability of the application falls short of merit. It is a fact that the petitioner has filed documents of stay order, vacating of stay order and representation before the Deputy Commissioner made by his brother Amal Biswas and three others. However, the grievance of the petitioner and the application made thereto before the respective authority has not been annexed. Be that as it may, from the report of the Surveyor, (Annexure P-6) it is

found that such survey has been made on the basis of the complaint of the complainant i.e. the petitioner. The report reveals that on the western side there is space of 0.63 metres. The Rule 165.(1)(a) of the Andaman & Nicobar Islands Land Revenue and Land Reforms Rules, 1968 provides as hereunder:- "No building shall be erected within 10 metres from the edge of the road or where a drain exists. 9 metres from the side of the drain. There shall be a minimum set back of 2 metres between two building on all sides."

Bearing in mind the aforesaid regulation and also upon perusal of the report of the Surveyor (Annexure P-6) it is found that there is violation of the set back rules contained under 165.(1)(a).

In the above premises the Deputy Commissioner, respondent no.1 is directed to take appropriate steps in accordance with law in respect of the violation as indicated within a period of three months from date.

With the aforesaid observation the Writ application stands disposed of.

Since Affidavit-in-Opposition has not been filed the allegation in the Writ application is deemed to be not admitted.

All parties to act on the website copy downloaded from the official website of the High Court.

Urgent photostat certified copy of this order be supplied to the parties after compliance of all necessary formalities.

(Bivas Pattanayak, J.)