Rajasekhar Mantha, J
The writ petition has been filed seeking enforcement of a notice dated 2nd June, 2016 addressed to the private respondents by the Port Blair Municipal
Council for the alleged construction made in violation of the sanctioned plan.
The violations alleged are as follows:
“1. The building plan is sanctioned/approved for construction of stilt+double storied commercial cum residential building for a plinth area of 151.63
M2 and total floor area of 378.26 but at site the building being constructed covers an areas of 733.42M2 which is violation of sanctioned building plan.
2. The building plan is sanctioned/approved for construction of stilt+double storied commercial cum residential building but at site the building being
constructed for stilt+triple storied building, which is violation of sanctioned building plan.
3. The rear side setback as per approved plan is 3.00 M but at site 0.60Mt setback is available.
4. FAR, exceeds beyond the permissible limit.
5. The violation setback and FAR is non-compoundable.â€
The locus standi of the petitioner is that the private respondents have encroached upon his land pursuant to such illegal construction.
After the said order was passed, the Council found that notwithstanding receipt of such notice, the private respondents continued to effect such illegal
construction and were constrained to issue a stay order No. 4230 dated 2nd June, 2016 restraining the private respondents from making any further
construction until further orders by the Council.
After finding that notwithstanding the order of stay dated 2nd June, 2016, the private respondents continued to violate such stay order also a notice
under Section 168(d) of the 1994 Regulations was issued on the 18th of July, 2016. The said notice was followed by a further order dated 30th
September, 2016 which was a final order of demolition under Section 168(d) of the Regulation of 1994 read with byelaw 32.9.
A civil suit being OS No. 88 of 2017 was thereafter filed before the Civil Judge, Junior Division-I at Port Blair by the private respondents against the
writ petitioner, since, according to them, the latter’s construction was also in violation of the Municipal Council’s sanction, and they did not
encroach upon the property of the writ petitioner. An ad-interim order was initially obtained on 16th November, 2017 restraining the writ petitioner
from interfering with the construction being effected by the private respondents.
Upon contest, however, the ad-interim order was vacated on 30th September, 2018 by the said Civil Court. The suit is pending. An appeal was
preferred against refusal of interim order which was also dismissed by the District Judge, Port Blair on 12th December, 2018 in Misc. Appeal No. 22
of 2018.
When the instant writ application was moved on 30th of November, 2018, affidavits were called for from the parties. Extension of time to file affidavit
was allowed on 3 occasions. The matter was adjourned as many as five occasions and on the last two occasions on the basis that the private
respondents and the petitioner were trying to settle the matter. No affidavit has been filed by the private respondents till date. The pleadings in the writ
petition remain uncontroverted.
This Court is also unable to appreciate as to how two private parties can settle a matter to negate the statutory orders.
The principal argument advanced by the private respondents through Ld. Advocate Mr. Jayapal is that any amount of violation made of either of a
sanctioned plan granted by the Municipal Council or in the absence thereof or in contravention of any byelaw under Section 163 and notwithstanding a
notice by the Council to demolish unauthorised construction made, can be remedied by way of compensation as has been held by the Division Bench
of this Court in MAT No. 06 of 2008 (K. N. Suresh vs. The Lt. Governor and others) delivered on 31st March, 2009. The Division Bench held that a
plain reading of Section 168 would entitle the violator of the rules of the Council to remedy the same and have it compounded by payment of
compensation.
This Court has noticed the pronouncement of the Division Bench in this regard.
In the facts of the instant case, however, this Court notices that not only is the construction made illegal but it has also been found to have encroached
on the property of the writ petitioner.
The private respondents have not been able to demonstrate any application or overt action on their part to seek compounding of the alleged deviations
made by them by offer of compensation. This Court also notices that the Council has not only issued an interim order of stay of the construction but
also a final order, which has been flagrantly violated by the private respondents.
Construction is stated to have been completed and the property rented out, as submitted by the Counsel for the writ petitioner. The same is however
disputed by the counsel for the writ petitioner.
The facts of the instant case cannot attract the aforesaid Division Bench’s judgment since the facts mentioned therein are substantially different.
The upshot of the interpretation of the Division Bench Section 168 of the Municipal Council Rules 1994 is, inter alia, that a bona fide illegal
construction or a bona fide deviation from construction and/or a bona fide construction notwithstanding notice of stay issued by the Council, can be
compounded. This, however, does not mean or empower the owner of a land who has obtained sanction to flagrantly violate the same and complete
construction despite a notice to stop construction.
The private respondents have admittedly also not availed any other remedies under the applicable statues till date.
In those circumstances the writ petition succeeds. The Municipal Council is directed to forthwith demolish the illegal construction made by the private
respondents outside the sanctioned plan within a period of 30 days from the date of communication of the copy of this order.
Let the order of the Division Bench in the Suresh Kumar’s case (supra) be kept with the record.
With the aforesaid direction the writ petition stands disposed of.
There shall be, however, no order as to costs.
Urgent Xerox certified server copy of this order, if applied for, be supplied to the Learned Counsel for the parties upon compliance of usual
formalities.
