Ritu Raj Singh v. The Andaman And Nicobar Administration And Others
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/1086/2023 Ritu Raj Singh Vs.
The Andaman and Nicobar Administration and others Mr. D.C.Kabir Mr. Ajith Prasad ... for the petitioner Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the Administration Mr. Arul Prasanth ... for the private respondents December 18, 2023 [SR] (Suppl Item No.1).
Considering the urgency, compliance of Rule 26 of the Appellate Side, as sought for by the petitioner, is dispensed with.
This court formally admits this writ application. All the relevant papers are enclosed with the petition. Hence this court is in a position to dispose of the writ. A very unacceptable situation has arisen.
By a decision dated 12th December, 2023, the Superintending Engineer, Municipal Council, Port Blair has ordered demolition of "the illegal structure" which appears to be a "tubular pipe tin structure" belonging to Swastik Tiles, Sony Enterprises in Pahargaon village.
Mr. D.C.Kabir, learned advocate for the petitioner submits that from last Saturday i.e. 16th December, 2023 demolition of the structure has been commenced and that such demolition is continuing at a rapid pace. This decision was taken despite pendency of an appeal against the order of demolition dated 22nd October, 2021
preferred by G.C.Jaiswal and Ms. Poonam Jaiswal before the Deputy Commissioner (Appellate Forum), South Andaman District, Port Blair.
The case of the petitioner is that he is a tenant under the Jaiswals and running the aforesaid business after making construction of the said structure. The structure is sought to be demolished over his head, without any notice to him. Mr. Chakraborty, learned advocate for the Municipal Council submits that such notice had been duly served. Mr. Arul Prasanth, learned advocate appearing for Jaiswals contends that the writ petitioner was all along acting as the agent of his client, signing the appeal papers and other documents and was fully aware of the nature and consequences of the demolition proceedings.
Whether the petitioner was acting for himself or as agent of the owner is quite secondary.
The main point is that when the appeal is against the demolition order pending before a properly constituted tribunal, the Superintending Engineer, Municipal Council ought to have ensured disposal of the appeal in favour of the council and then proceeded to demolish the building. There was no grave emergency which could have impelled the Superintending Engineer to order demolition pending the appeal.
It is true that there is no stay granted by the appellate authority. Yet, one must appreciate that irrespective of stay, demolition of a building pending appeal tantamounts to destruction of the subject matter of the appeal. One has to be careful before that is done.
In the facts and circumstances of this case, this hurried demolition was not called for.
The demolition order dated 12th December, 2023, annexure P-4 at page 44 is set aside. The appellate authority is directed to dispose of the appeal within eight weeks of communication of this order.
All contentions are kept open before the appellate authority.
After disposal of the appeal, the Superintending Engineer, Municipal Council, Port Blair would be at liberty to act in accordance with law.
The petitioner, the Jaiswals and the Municipal Council shall make a joint inventory of the materials at the site. The writ petitioner will also be permitted to temporarily protect the rest of the structure temporarily from destruction till the disposal of the appeal before the appellate authority or until further order passed by that authority whichever is earlier. Learned counsel for the petitioner also alleges that on demolition the municipal council has removed materials from the site. The Municipal Council will furnish a list of such materials to the Advocate-on-record for the petitioner within two weeks from date.
As affidavits are not invited, the allegations contained in the writ petition are deemed not to have been admitted. The writ application is accordingly disposed of. ( I.P.Mukerji, J.)