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2020 DIGILAW 327 (CAL)

Sayeeda Mushtaq v. Lt. Governor

2020-03-02

HARISH TANDON, MD.NIZAMUDDIN

body2020
JUDGMENT Harish Tandon, J. - The MAT No. 1350 of 2019 and MAT No. 1351 of 2019 are at the instance of the Ashora Bibi and Khatiza Bibi whose writ petitions being WP No. 423 of 2016 and WP No. 481 of 2016 were dismissed by a common judgement and order dated September 5, 2019. The other four appeals being MA No.44 of 2019, MA No.45 of 2019, MA No. 46 of 2019, MA No.15 of 2020 are at the instance of Sayeeda Mushtaq and Sabeena Mushtaq challenging selfsame judgement and order dated September 5, 2019 after seeking leave to appeal as the said order substantially affected their right without being impleaded party in the aforesaid writ petitions. 2. All the six mandamus appeals are taken up together for the purpose of convenience and avoidance of prolixity of repetition of facts. 3. The facts of the instant appeals are more disturbing for the simple reasons that the illegal and unauthorized constructions have not been demolished by the concerned authorities despite the orders of the demolition passed as far back as in the year 1991. A show cause notice under Section 158 (F) of the Andaman and Nicobar (Municipal Boards) Regulation, 1957 was issued on 19.12.1991 against Ashora Bibi alleging unauthorised construction and asking her to show cause why such unauthorised construction should not be demolished. Subsequently, an application was made by Ashora Bibi for sanction of the building plan which was return by the Board on 08.09.1992 as it cannot be considered because of earlier construction of the building without approval of the Board and an order of demolition has already been passed. 4. There was a complete silence till 2006 when a further notice was issued upon Ashora Bibi as well as Khatiza Bibi under Andaman and Nicobar Islands (Municipal Council) Regulation, 1994 and the proceeding was initiated against the Khatiza Bibi. Subsequently, a further notice was issued upon Ashora Bibi on 15.11.2010 alleging that the despite the orders passed way back in the year 1991 by the Port Blair Municipal Board for demolition of the illegal construction the same has not been done. It was further indicated in the said notice dated 15.11.2010 that by virtue of the provision contained under Section 210 (1) of the Andaman & Nicobar Islands (Municipal Council) Regulation, 1994 it does not affect the previous operation of the repealed Act. It was further indicated in the said notice dated 15.11.2010 that by virtue of the provision contained under Section 210 (1) of the Andaman & Nicobar Islands (Municipal Council) Regulation, 1994 it does not affect the previous operation of the repealed Act. It is put on record that the Regulation of 1957 was repealed by a Regulation of 1994 and Section 210 of the Regulation of 1994 contained a repeal and saving clause. In the meantime the process of demolition was activated by the Zohra Bibi who filed a writ petition being WP No. 272 of 2016 for implementation of the order of demolition passed by the authorities. 5. The parties have been subject to several round of litigation and every action of the authorities in carrying out the order of demolition was challenged. Time to time orders were passed in the writ petition directing the authorities to take steps in the light thereof and the moment an order of demolition is passed against Ashora Bibi and Khatiza Bibi, the same was carried to a First Appellate Authority and after the affirmation thereof was further carried to Lieutenant Governor in second appeal. Upon affirmation of the said order the aforesaid writ petitions are filed by Khatiza Bibi and Ashora Bibi challenging the orders passed by the Secretary, Deputy Commissioner and Lieutenant Governor. However, Zohara Bibi also filed a separate writ petition seeking implementation of the said order of demolition. All the aforesaid writ petitions were taken upon together and by a common judgement and order, the writ petitions filed by the Ashora Bibi and Khatiza Bibi were dismissed and the one filed by the Zohara Bibi was allowed with specific direction upon the concerned authority to demolish the illegal and unauthorised construction. 6. The illegal constructions of a building and a structure throughout the country are mushrooming and the violator of the law is getting away with the order of demolition either because of the dormant and lethargic approach of the authorities or sometimes because of the time consumed by the Court in disposing of the matter filed before it. The salient object behind obtaining sanction of the plan is the systemic development in the infrastructure without causing any damage or threat to the life of citizen. The salient object behind obtaining sanction of the plan is the systemic development in the infrastructure without causing any damage or threat to the life of citizen. The illegal and unauthorised construction in a haphazard manner would not only cause a threat of life because of unascertained stability but also infringes the basic amenities which a person is expected to enjoy life in civilized society. Several statutes are enacted to control the systematic and organised development of a plan township and strict provision are incorporated if the construction of the building or other structures are made without sanction or permission having obtained from the competent authority. The authority who is empowered to take steps against such illegal and unauthorised constructions cannot act whimsically but within the well-defined parameters of the law. The authority cannot pass any stringent order against a person without following the statutory provisions enacted in this regard. 7. The Regulation of 1957, more particularly, the chapter dedicated to 'building' contains an exhausted provision relating to construction of a building within the islands and necessity of obtaining the plan from the authority therein. The said Regulation also contained the provisions relating to an action to be taken against the violator of such provisions and, therefore, the authorities who sees the birth under the said regulation cannot act in derogation of the said provisions and all the action be strictly in conformity therewith. 8. Section 158 of the Regulation of 1957 creates a complete embargo on the erection or re-erection of a building without the sanction required to be granted under Section 152 and further contained the provision that, if any provision of the said Regulation or the by-laws are contravened, the Board may by notice to be delivered within considerable time required the building to be altered or demolished within 30 days from the date of notice. However, the second proviso appended thereto confers power upon the Board to accept by way of compensation any such sum as it things fit instead of ordering the demolition of such building. 9. A point has been raised by the writ petitioners that the notice was served by the Secretary and not by the Board and, therefore, the very foundation of the initiation of proceeding is faulty. 9. A point has been raised by the writ petitioners that the notice was served by the Secretary and not by the Board and, therefore, the very foundation of the initiation of proceeding is faulty. Under the said Regulation every Municipal area shall have a Municipal Board which shall be body corporate and consist of several members, the description were of has been given under Section 8 thereof. Section 19 of the Regulation of 1957 indicates that every Board shall have a Secretary to be appointed by the Chief Commissioner and if the member of the Board is appointed as a Secretary, he shall not be entitled to any remuneration. Section 42 of the said Regulation empowers the Board to delegate all or any of the powers or duties conferred under the said Regulation to a Sub-Committee or Chairman or Vice Chairman or any member. The writ petition is completely silent whether the Secretary, who issued the notice and initiated the proceeding was a member of the Board or not and, therefore, this Court can safely presume that he was so and by virtue of power having delegated in terms of Section 42, his action cannot be impinged as the power to initiate proceeding against the unauthorized and illegal construction is vested upon the Board. We do not find such ground convincing and is hereby overruled. 10. However, another question has arisen because of the complete silence on the part of the Board constituted under Regulation of 1957 which was repealed by a Regulation of 1994. The subsequent Regulation also contained somewhat identical provision in Section 168 thereof. The impugned show cause issued on 15.11.2010 upon Ashora Bibi being the foundation of the proceeding initiated against her is the subject matter of challenge in the said writ petition. The said notice contained a specific reference of the action having taken way back in 1991 and the further action is contemplated under the Regulation of 1994 as all the actions have been saved under Section 210 of the Regulation of 1994. The said Regulation is quoted as under:- '210.(1) The Andaman and Nicobar Islands (Municipal Boards) Regulation, 1957 is hereby repealed. The said Regulation is quoted as under:- '210.(1) The Andaman and Nicobar Islands (Municipal Boards) Regulation, 1957 is hereby repealed. (2) The repeal of the said Regulation shall not effect,- (a) the previous operations of the said Regulation or any other done or suffered thereunder; or (b) any right, privilege, obligation or liability acquired, accrued or incurred under the said Regulation; or (c) any penalty, forefeiture or punishment incurred in respect of any offence committed against the said Regulation; or (d) any investigation, legal proceeding or remedy in respect of which such right privilege, obligation, liability, forefeiture or punishment as aforesaid on any such investigation, legal proceeding or remedy may be instituted continued or enforced any such penalty, forfeiture or punishment may be imposed as if this Regulations had not been promulgated.' 11. Under the said Regulation, the earlier Regulation of 1957 has been repealed but sub-Section 2 thereof saved the investigation, legal proceedings or remedy in respect of a right privilege obligation, liability, forfeiture or punishment and if any proceeding has been initiated it may be instituted, continued or enforced as if the Regulation of 1994 has not been promulgated. 12. So far as, Ashora Bibi is concerned, the proceeding was initiated in the year 1991 but no action was taken against her. By a further show cause notice issued under the Regulation of 1994, the said proceeding cannot be continued thereunder because of the saving clause. Had it been a fresh notice and a fresh proceeding is contemplated after the promulgation of the Regulation of 1994 the position would have been different. 13. We are not unmindful of the proposition that even after the repeal of the Regulation of 1957, the illegality committed thereunder does not ipso facto get regularized or in other words receive legal sanction. The illegality continues and there was no privileges provided under the old Regulation which may be saved. The change in the substantive law would not effect pending litigations unless by express provision in the statute. 14. Though we find the said show cause refers the notices relating to demolitions issued way back in the year 1991, yet a meaningful reading is to be given and unnecessary statement may be ignored. The change in the substantive law would not effect pending litigations unless by express provision in the statute. 14. Though we find the said show cause refers the notices relating to demolitions issued way back in the year 1991, yet a meaningful reading is to be given and unnecessary statement may be ignored. What can be gathered from the meaningful reading of the said show cause notice that a proceeding is initiated afresh for illegal constructions having made earlier, requiring the Ashora Bibi to show cause as to why an order of demolition may not be passed. 15. In case of Dipak Kumar Mukherjee vs. Kolkata Municipal Corporation and others reported in (2013) 5 SCC 336 . The Apex Court held:- '8. What needs to be emphasised is that illegal and unauthorized constructions of buildings and other structure not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storied structure raised by ecomomically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromise are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors. 9. We have prefaced disposal of this appeal by taking cognizance of the precedents in which this Court held that there should be no judicial tolerance of illegal and unauthorized constructions by those who treat the law to be their sub-servient, but are happy to note that the functionaries and officers of Kolkata Municipal Corporation (for short, the Corporation) have been extremely vigilant and taken steps for enforcing the provisions of the Kolkata Municipal Corporation Act, 1980 (for short, the 1980 Act) and the rules framed thereunder for demolition of illegal construction raised by respondent No.7. This has given a ray of hope to the residents of Kolkata that there will be zero tolerance against illegal and unauthorised constructions and those indulging in such activities will not be spared.' 16. From the enlightening observation as quoted hereinabove it will be a premium to the Ashora Bibi if the show cause notice dated 15.11.2010 is quashed on such fringe issue when there is ample evidence that the construction made by her is totally unauthorised and illegal. The report of the inspection conducted on 01.09.2010 corroborates the aforesaid fact. There are existence of two and three storied building and as many as 9 buildings have been found to exist and, therefore, the action of the authority in passing an order of demolition cannot be impinged so far as the Ashora Bibi is concerned. 17. The case of Khatiza Bibi stands on different footing. Admittedly, the notice was issued under Section 168 of the Regulation of 1994 alleging unauthorised and illegal constructions, the existence whereof is also find in the said inspection report, and there is no convincing material forthcoming that she obtained sanction at any point of time. Both in case of Ashora and Khatiza a building plan was submitted to the concerned authority for sanction which was returned to them as such sanction cannot be granted. We further noticed that the prayer for regularisation upon payment of compensation was also refused and if such discretion is exercised judicially and not whimsically, the Writ Court should be slow in interfering with such discretionary order. Thus the order passed against the Ashora Bibi and Khatiza Bibi for demolition of the illegal and unauthorised construction does not require any interference. 18. Reverting to the other four mandamus appeals filed by the Sayeeda Mushtaq and Sabeena Mushtaq are concerned, this Court find that their case stands on a different footing. The order of demolition was passed in respect of a survey plot where the authority during inspection found existence of nine building/structures. Some of the structures are admittedly built by Sayeeda Mushtaq and Sabeena Mushtaq. No show cause notice has been issued upon them nor any proceeding was initiated against the alleged construction of illegal and unauthorized structure. Section 168 of the Regulation 1994 requires a notice to be delivered to the person who have allegedly made an unauthorized and illegal construction. Some of the structures are admittedly built by Sayeeda Mushtaq and Sabeena Mushtaq. No show cause notice has been issued upon them nor any proceeding was initiated against the alleged construction of illegal and unauthorized structure. Section 168 of the Regulation 1994 requires a notice to be delivered to the person who have allegedly made an unauthorized and illegal construction. The right of hearing is a fundamental right and cannot be undermined simply because there appears to be an alleged violation of the provision and the said regulation. If the things are required to be done in a particular manner it should be done in such manner and not otherwise. The statutory authority cannot act de hors the provisions of the statute but to travel within the circumference thereof. It has come out in course of the hearing that all the parties are separately enjoying the said plot without any division or sub division thereof and, therefore, an order of demolition passed against Ashora Bibi and Khatiza Bibi would cause greater prejudice to them. 19. We thus direct the authorities to initiate a proceeding against Sayeeda Mushtaq and Sabeena Mushtaq by complying the provisions contained in the Regulation of 1994 and if the authority feels to initiate a proceeding against the aforesaid persons it must give an opportunity of hearing in its true spirit. 20. We thus made it clear that, the order passed against Ashora Bibi and Khatiza Bibi shall not be extended upon Sayeeda Mushtaq and Sabeena Mushtaq. 21. With these observations, MAT No. 1350 of 2019 and MAT No. 1351 of 2019 are hereby dismissed. 22. MA No. 44 of 2019, MA No. 45 of 2019, MA No. 46 of 2019, MA No.15 of 2020 are hereby disposed of in the light of the observations made hereinabove. 23. In the view of the disposal of the main appeal all connected applications are accordingly disposed of. (HARISH TANDON, J.) MD. NIZAMUDDIN, J. I agree. (MD. NIZAMUDDIN, J.) Later. 24. The learned advocate appearing for the appellants in MAT No.1350 of 2019 and MAT No.1351of 2019 prays for a stay of the operation of this order. 25. Considering the length of litigation and the consequence that would follow because of the dismissal of the instant appeal, we stay the operation of this order so far as those appeals are concerned for a period of thirty days from date.