Hassan Bodumukajothi & others v Union Territory of Lakshadweep and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 28[TH] 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 28[TH] 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 28[th] day of January, 2022_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ 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 : 6 : 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 : 7 : 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 : 8 : 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 : 9 : 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 : 10 : 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 : 11 : 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 : 12 : 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 : 13 : 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 : 14 : ## **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**<br>**COPY**<br>**OF**<br>**THE**<br>**ORDER.**| ||**F.NO.10/1/2020-2021-LBDB/67**<br>**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 : 15 : ## **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.10/1/20202021-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.**