Hassan Bodumukajothi vs Union Territory Of Lakshadweep
2022 Latest Caselaw 1194 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
 FRIDAY, THE 28TH DAY OF JANUARY 2022 / 8TH MAGHA, 1943
                WP(C) NO. 14447 OF 2021
PETITIONERS:

    1    HASSAN BODUMUKAJOTHI
         AGED 59 YEARS
         S/O.ALI K.B., PRESIDENT CUM CHIEF COUNSELLOR
         DISTRICT PANCHAYATH, KAVARATHI
         LAKSHDWEEP PIN 682 555
    2    T.ABDULKHADER
         AGED 66 YEARS
         S/O.KHALID CHUNGAM, CHAIRPERSON VILLAGE,
         DWEEP PANCHAYATH, KAVARATHI ISLAND,
         LAKSHDWEEP PIN 682 555
    3    HAIORUNNISA A.
         AGED 34 YEARS
         W/O.SULAIMAN, CHAIRPERSON VILLAGE,
         DWEEP PANCHAYATH, AMINI ISLAND,
         LAKSHDWEEP PIN 682 552

         BY ADVS.
         LAL K.JOSEPH
         P.K.SALEEM
         KOYA ARAFA MIRAGE


RESPONDENTS:

    1    UNION TERRITORY OF LAKSHADWEEP
         REP. BY ITS ADMINISTRATOR,
         OFFICE OF THE LAKSHADWEEP ADMINISTRATOR,
         KAVARATTI 682 555
    2    ADMINISTRATOR
         OFFICE OF THE LAKSHADWEEP ADMINISTRATOR,
         KAVARATTI 682 555
    3    LAKSHADWEEP BUILDING
         DEVELOPMENT BOARD, KAVARATTI 682 555,
         REP. BY ITS SECRETARY.
    4    CHAIRPERSON
         LAKSHADWEEP BUILDING DEVELOPMENT BOARD,
         KAVARATTI 682 555
 W.P.(C) Nos.14447 & 20233 of 2021
                                    :2:


    5      SECRETARY
           LAKSHADWEEP BUILDING DEVELOPMENT BOARD,
           KAVARATTI 682 555

           BY ADVS.
           SHRI.MANU.S, ASGI
           SHRI.SAJITH KUMAR V., SC, LAKSHADWEEP
           ADMINISTRATION

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 28.01.2022, ALONG WITH WP(C).20233/2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) Nos.14447 & 20233 of 2021
                                    :3:



          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
            THE HONOURABLE MR.JUSTICE N.NAGARESH
 FRIDAY, THE 28TH DAY OF JANUARY 2022 / 8TH MAGHA, 1943
                    WP(C) NO. 20233 OF 2021
PETITIONERS:


    1      HASSAN BODUMUKAJOTHI
           AGED 59 YEARS
           S/O.ALI K.B., PRESIDENT CUM CHIEF COUNSELLOR,
           DISTRICT PANCHAYATH, KAVARATHI,
           LAKSHADWEEP, PIN - 682 555.
    2      T.ABDULKHADER, AGED 66 YEARS
           S/OKHALID CHUNGAM, CHERPERSON VILLAGE,
           DWEEP PACHAYATH, KAVARATHI ISLAND,
           LAKSHADWEEP, PIN - 682 555.
    3      HAIORUNNISA A., AGED 34 YEARS
           W/O.SULAIMAN, CHAIRPERSON VILLAGE,
           DWEEP PANCHAYATH, AMINI ISLAND,
           LAKSHADWEEP, PIN - 682 552.

           BY ADVS.
           LAL K.JOSEPH
           P.MURALEEDHARAN (THURAVOOR)
           T.A.LUXY
           SURESH SUKUMAR
           ANZIL SALIM
           CHACKO MATHEWS K.
RESPONDENTS:


    1      UNION TERRITORY OF LAKSHADWEEP
           REPRESENTED BY ITS ADMINISTRATOR,
           OFFICE OF THE LAKSHADWEEP ADMINISTRATOR,
           KAVARATTI - 682 555.
    2      ADMINISTRATOR
           OFFICE OF THE LAKSHADWEEP ADMINISTRATOR,
           KAVARATTI - 682 555.
    3      LAKSHADWEEP BUILDING DEVELOPMENT BOARD,
           KAVARATTI - 682 555, REP. BY ITS SECRETARY.
 W.P.(C) Nos.14447 & 20233 of 2021
                                    :4:


    4      AMIT SATIJA, CHAIRPERSON,
           LAKSHADWEEP BUILDING DEVELOPMENT BOARD,
           KAVARATTI - 682 555.
    5      M.K.ABDUL SALAM, SECRETARY,
           LAKSHADWEEP BUILDING DEVELOPMENT BOARD,
           KAVARATTI - 682 555.
    6      C.N.SHAJAHAN
           SUPERINTENDING ENGINEER, VICE CHAIRPERSON LBDB,
           LAKSHADWEEP PUBLIC WORK DEPARTMENTS,
           KAVARATTI ISLAND, UT OF LAKSHADWEEP,
           PIN - 682 555.
    7      PRADEEP KUMAR
           DIRECTOR OF AGRICULTURE, MEMBER LBDB,
           DEPARTMENT OF AGRICULTURE, KAVARATTI ISLAND,
           U.T.OF LAKSHADWEEP, PIN - 682 555.
    8      AMIT VARMA, MEMBER LBDB,
           DIRECTOR DEPARTMENT OF SCIENCE AND TECHNOLOGY
           KAVARATTI ISLAND, U.T.OF LAKSHADWEEP,
           PIN - 682 555.
    9      AZARUDHEEN, MANAGER
           MEMBER LBDB, CANARA BANK, KAVARATTI ISLAND,
           U.T. OF LAKSHADWEEP, PIN - 682 555.
    10     SHASHIPAL DABAS
           ADDITIONAL DISTRICT MAGISTRATE MEMBER LBDB,
           OFFICE OF THE ADM KAVARATTI ISLAND,
           U.T.OF LAKSHADWEEP, PIN - 682 555.
    11     BHIKA RAM MEENA
           MEMBER LBDB,
           DIRECTOR DEPARTMENT OF PANCHAYATH KAVARATTI
           ISLAND, U.T.OF LAKSHADWEEP, PIN - 682 555.
    12     FEROZA JABEEN P.P.
           ACCOUNTS OFFICER, SPECIAL INVITEE,
           LAKSHADWEEP BUILDING DEVELOPMENT BOARD
           KARAVARATTI ISLAND, U.T.OF LAKSHADWEEP,
           PIN - 682 555.

           BY SHRI.MANU.S, ASGI
           SHRI.SAJITH KUMAR V., SC, LAKSHADWEEP
           ADMINISTRATION

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 28.01.2022, ALONG WITH WP(C).14447/2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) Nos.14447 & 20233 of 2021
                                       :5:




                           N. NAGARESH, J.

          `````````````````````````````````````````````````````````````
             W.P.(C) Nos.14447 and 20233 of 2021

          `````````````````````````````````````````````````````````````
              Dated this the 28th day of January, 2022

                            JUDGMENT

~~~~~~~~~

The petitioners were Board Members of the

Lakshadweep Building Development Board. They are

aggrieved by the order dated 11.05.2021 ordering winding up

of the Board with effect from 31.05.2021.

2. The petitioners state that with an objective of

regulating the use of building materials including coral

materials in building operation, for supply of building

materials and for undertaking Housing Projects in the Union

Territory of Lakshadweep, the President promulgated Ext.P1

Lakshadweep Building Development Board Regulations,

1997. The Board has contributed substantially in protection W.P.(C) Nos.14447 & 20233 of 2021

of unique environment of Lakshadweep. Local people were

procuring building materials from the Board. About 204

applications under BPL category and 756 applications under

APL category are pending.

3. While so, Ext.P4 order has been issued by the 5 th

respondent ordering winding up of the Board. According to

the petitioners, before superseding the Board, the

Administrator is bound to issue a show-cause notice to the

Board as mandated by Regulation 25 of Ext.P1 Regulation.

Ext.P4 has been issued violating Regulation 25 and without

any authority of law. A Notification should be published in

the Lakshadweep Gazette, which has not been done.

4. Before supersession, an enquiry is contemplated,

which has not been carried out. The 5 th respondent has no

power to issue Ext.P4. A full report has to be placed before

the Parliament in this regard, which has not been done. The

inhabitants of Lakshadweep have no other source of

purchase of building materials. 956 applications for building

materials are pending and there is stock of building materials W.P.(C) Nos.14447 & 20233 of 2021

also with the Board. In the circumstances, the petitioners

filed W.P.(C) No.14447/2021 seeking to reinstate the Board

in its position.

5. Pending the writ petition, the Members of the

Board passed a resolution on 11.08.2021 to close the

Schemes and operations of the Board and to wind up the

Board by taking appropriate follow-up actions in this regard.

The petitioners have hence filed W.P.(C) No.20233/2021

challenging the said resolution dated 11.08.2021, marked as

Ext.P8 in the writ petition.

6. The learned counsel for the petitioners argued that

as per Regulation 25(1), if at any time the Administrator is of

the opinion that the Board is unable to perform, or has

persistently made default in the performance of duties or has

exceeded or abused its powers or has wilfully without

sufficient cause failed to comply with any direction issued by

the Administrator, the Administrator may by notification

supersede the Board. In this case, no grounds enumerated

in the Regulations exist and no notification as mandated in W.P.(C) Nos.14447 & 20233 of 2021

the Regulations has been published.

7. The learned counsel for the petitioners further

urged that Ext.P4 order is malafide and the order is fait

accompli. It is a premeditated order intended to usurp the

powers of the Board. No show-cause notice was issued to

the Board or to its Members and no opportunity to explain

was given. Furthermore, Ext.P4 has been issued by the 5 th

respondent-Secretary. The Administrator is not competent to

sub-delegate his powers under the Regulations to the

Secretary. The said legal issue is covered by the judgment in

Indian National Congress (I) v. Institute of Social Welfare

and others [(2002) 5 SCC 685].

8. The respondents resisted the writ petition filing

counter affidavit. The learned Standing Counsel for the

respondents contended that the LBDB had been supplying

Granite Chips and M.Sand at subsidised rate to all the

eligible applicants including APL households. The

beneficiaries procure all other building materials like cement,

steel, etc., at their own cost. This leads to a situation in which W.P.(C) Nos.14447 & 20233 of 2021

the applicants are waiting for years for the subsidised

materials from LBDB and thereafter are forced to purchase

the other building materials at higher cost. Delay in the

supply of building materials has an adverse impact on cost of

construction due to escalation of cost of other building

materials.

9. The system of supplying only Granite Chips and M

Sand to eligible applicants is also partial only. Now, there

exists Pradhan Mantri Gramin Awas Yojana (PMGAY), a

flagship program of Government of India to provide housing

for the rural poor. Later, the Scheme was restructured as

PMAY-G during 2015 with the target of housing for all by

2022. The broad purpose of the scheme is to provide

financial assistance to the weakest sections of the society.

Lakshadweep has achieved 100% physical progress from

2016-'17 to 2020-'21 by giving financial assistance to 45

houses under PMAY-G.

10. A direction was issued to avoid any administrative

difficulty that would arise in the process of winding up, in W.P.(C) Nos.14447 & 20233 of 2021

case administration decided to forgo the process of

procurement of materials as has been in practice. However,

no notifications or orders have been issued by the

Administration of Union Territory of Lakshadweep for winding

up of the LBDB. Review of functioning of the institutions and

bodies under the Administration and taking appropriate

actions to ensure their effective functioning/ closing, is

essential for good governance.

11. I have heard the learned counsel for the

petitioners and the learned Standing Counsel for the

respondents.

12. The thrust of the arguments made by the

petitioners is on Regulation 25(1) of the Lakshadweep

Building Development Board Regulations, 1997. Regulation

25(1) of the Regulations, 1997 reads as follows:

25.(1) If at any time the Administrator is in the opinion that the Board is unable to perform, or has persistently made default in the performance of the duties imposed on it by or under this Regulation or has exceeded or abused is powers or has wilfully or without sufficient cause, failed to comply with any direction issued by the Administrator under Section W.P.(C) Nos.14447 & 20233 of 2021

27, the Administrator may, by notification supercede the Board for such period, not exceeding six months, as may be specified in the notification:

Provided that the before issuing notification under this sub section, the Administrator shall give reasonable time to the Board to Show cause why it should not be superseded and shall consider the explanation and objections, if any, of the Board.

It is amply clear from the language of Regulation 25(1) that it

is intended to apply when the Board is superseded for

temporary periods, due to failure of or persistent default of

the Board to perform its functions, due to wilful

non-compliance of the directions of the Administrator, or

when the Board has exceeded or abused its powers.

13. In the present case, the Lakshadweep

Administration has revised activities of various Departments

and other bodies and non-productive and unviable activities

have been identified. The Administration decided to stop

such activities and to introduce alternate methods to serve

people. The administration noted that the Board causes huge

financial loss to the Government Exchequer by giving

untargetted subsidy for the Building materials. The W.P.(C) Nos.14447 & 20233 of 2021

administration also took into consideration the Pradhan

Mantri Awas Yojana (PMAY) which Scheme is already

extended to the citizens of Lakshadweep Islands also.

14. According to the Vice Chairman and Secretary of

the Board, the Grant in Aid given to the Board by the

Lakshadweep Administration for the past years is as follows:

             2015-'16          ₹3 Crores

             2016-'17          ₹6 Crores

             2017-'18          ₹5 Crores

             2018-'19          ₹6 Crores

15. By the Grant in Aid so provided at the rate of

approximately ₹6 lakhs per house in Lakshadweep, one

hundred houses can be built per year, for targetted

population instead of giving subsidy to untargetted

beneficiaries. In the circumstances, it was decided to wind

up the Board. Though there were some objections, the Board

by majority decision, passed Ext.P8 resolution to wind up the

Board.

W.P.(C) Nos.14447 & 20233 of 2021

16. Regulation 25(1) of the Lakshadweep Building

Development Regulations, 1997 is not intended to apply in

the circumstances under which a decision to wind up was

taken. The said Regulation will apply only when a temporary

supersession of the Board is contemplated. The facts

brought forth justify winding up of the Board. Above all, the

issue falls within the realm of executive policy.

In the circumstances, the writ petitions are without

any merit and are therefore dismissed.

Sd/-

N. NAGARESH, JUDGE aks/24.01.2022 W.P.(C) Nos.14447 & 20233 of 2021

APPENDIX OF WP(C) 14447/2021

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE LAKSHADWEEP BUILDING DEVELOPMENT BOARD REGULATION, 1997 PUBLIHSED IN THE EXTRA ORDINARY GAZETTE OF THE INDIA BY MINISTRY OF LAW AND JUSTICE DATED 12.2.19.

Exhibit P2 TRUE COPY OF THE LAKSHADWEEP BUILDING DEVELOPMENT BOARD RULES, 1997 Exhibit P3 TRUE COPY OF THE LAKSHADWEEP BUILDING DEVELOPMENT BOARD (SUPPLY OF BUILDING MATERIALS) BYE-LAWS, 2003 Exhibit P4 TRUE COPY OF THE ORDER.

F.NO.10/1/2020-2021-LBDB/67 DATED 11.5.21 ADDRESSED TO THE REGISTRATION OFFICERS OF THE BOARD OF ALL ISLANDS.

Exhibit P5 COPY OF ORDER DT 01.06.2021 ISSUED BY THE SECRETARY.

W.P.(C) Nos.14447 & 20233 of 2021

APPENDIX OF WP(C) 20233/2021

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE LAKSHADWEEP BUILDING DEVELOPMENT BOARD REGULATION, 1997 PUBLISHED IN THE EXTRA ORDINARY GAZETTE OF THE INDIA BY MINISTRY OF LAW AND JUSTICE DATED 12/2/1997.

Exhibit P2 TRUE COPY OF THE LAKSHADWEEP BUILDING DEVELOPMENT BOARD RULES, 1997.

Exhibit P3 TRUE COPY OF THE LAKSHADEEP BUILDING DEVELOPMENT BOARD (SUPPLY OF BUILDING MATERIALS) BYE-LAWS, 2003.

Exhibit P4 TRUE COPY OF THE ORDER F.NO.10/1/2020-

2021-LBDB/67 DATED 11/5/21 ADDRESSED TO THE REGISTRATION OFFICERS OF THE BOARD OF ALL ISLANDS.

Exhibit P5 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 3/8/2021, FILED ON BEHALF OF THE RESPONDENTS IN WP(C) 14447 OF 2021.

Exhibit P6 TRUE COPY OF THE CIRCULAR/NOTICE DATED 9/08/2021.

Exhibit P7 TRUE COPY OF THE EMAIL DATED 10/08/2021.

Exhibit P8 TRUE COPY OF THE MINUTES OF THE 49TH MEETING OF THE LAKSHADWEEP BUILDING DEVELOPMENT BOARD HELD ON 11TH AUGUST 2021.

RESPONDENT'S EXTS:

R3(a) COPY OF THE LETTER DT 18.08.2021.