Hotel Lakshmi Bar and Restaurant and Another vs The Lt. Governor and Others

Harish Tandon, J.—The petitioners have assailed the order dated 23rd July, 2010 by which the Deputy Commissioner, North & Middle Andaman District, Mayabunder, has rejected their application for renewal of Bar licence as the establishment of the petitioner No. 2 is located within the buffer zone. The petitioners have also challenged the notification dated 30th October, 2007 by which the Lieutenant Governor declared the area of buffer zone. It is an admitted fact that the petitioners being the recorded tenant of the land measuring 0.5 hectors comprising Survey No. 24 at village Nilambur under Rangat Tehsil were allowed for the conversion of the land for opening a Bar-cum-Restaurant by the Deputy Commissioner, Andaman District w.e.f. 13th September, 2005 till 31st March, 2006. The said licence was renewed from time to time for a limited period till 31st March, 2010. Before the expiration of the said period, an application was taken out on 2nd March, 2010 by the petitioners before the Deputy Commissioner, North & Middle Andaman, seeking for the renewal of the said licence. Initially, the authorities passed various directions relating to the observation of the formalities which are required for the purpose of granting renewal of the said licence but ultimately no decision was taken thereupon. On 29th March, 2010 the Tehsildar, Rangat submitted a report which envisaged that the bar and restaurant of the petitioners is located in Bazar area of Nilambur village which is away from Jarawa Tribal reserve area. In spite of the aforesaid report being submitted and action being taken upon the said application for renewal, no decision could be taken by the Deputy Commissioner. The petitioners thereafter filed a writ petition being W.P. No. 1086 of 2010 before this Court which was disposed of on June 14, 2010 with a direction upon the Deputy Commissioner, North & Middle Andaman, to consider the said representation/application dated 2nd March, 2010 within four weeks from the date of communication of the order after giving an opportunity of hearing to the petitioners.

In compliance of the said direction passed in the said writ petition, the impugned order dated 23rd July, 2010 is passed.

As indicated above, the petitioners have challenged the said order dated 23rd July, 2010 which having been passed on the basis of the notification dated 30th October, 2007 by which the declaration as to buffer zone is made.

Mrs. Nag, learned advocate appearing for the petitioners submits that the Tehsildar, Rangat has found that the bar and restaurant of the petitioners is situated away from the Jarawa Tribal area and therefore the Deputy Commissioner could not have rejected the said application for renewal of the Bar licence holding that it comes within the buffer zone. She further submits that Section 3 of the Andaman & Nicobar Islands (Protection of Aboriginal Tribes), Regulation, 1956 does not authorize the Chief Commissioner to declare the buffer zone as the said power is conferred upon the said authority relating to the declaration of the reserved area of the aboriginal tribes.

Lastly, she submits that even after the said notification dated 30th October, 2007, the authorities have renewed the bar licence and therefore cannot thereafter contend that the bar and restaurant of the petitioners is situated within the buffer zone.

Mr. Mandal, learned advocate appearing for the respondents disputes the aforesaid contention of the petitioners in contending that the renewal was granted in contravention to the said notification dated 30th October, 2007 and after detection thereof, the authorities have rightly rejected the application for renewal filed by the petitioner. He strenuously submits that a mistake committed by the authority cannot confer any right upon the petitioners.

Lastly, he submits that the Supreme Court has upheld the validity of the said notification dated 30th October, 2007 and the Court cannot direct the authorities to act in contravention to the law and the direction made by the Apex Court.

Having considered the respective submission of the parties, the impugned order dated 23rd July, 2010 is passed in view of the declaration of the buffer zone by notification dated 30th October, 2007. It is no doubt true that the authorities mechanically renewed the licence by extending the period thereof without taking into consideration whether the petitioner No. 1 is situated within the buffer zone as declared under the said notification dated 30th October, 2007.

The notification dated 30th October, 2007 was challenged by some of the similarly circumstanced persons and the matter went up to the Supreme Court being the SLP (Civil) No. 12125 of 2010. The Apex Court from time to time passed interim orders directing the authorities to close down all the resorts, restaurants and bar located within the buffer zone. By final order dated July 02, 2012 the Supreme Court disposed of the said SLP by holding the notification to be unconditional and valid with further direction upon the authorities concerned to strictly implement the prohibition contained therein unless by subsequent notification it is rescinded and/or amended.

The main thrust of the petitioners in this writ petitioner is that the Tehsildar, Rangat, has reported that the establishment of the petitioner No. 2 is beyond the said restriction imposed by the said notification. A bare look of the said report would lead to inevitable conclusion that what was reported is that the establishment of the petitioner No. 2 is not within the tribal area but the said report does not speak of whether the same is situated within the buffer zone or not. The radius of the buffer zone is declared by the said notification to be five kilometers from the tribal reserve area. Therefore, the said report cannot come to a rescue of the petitioners by any stretch of imagination. The petitioner No. 2 has also not come out with the categorical case that his establishment is beyond the buffer zone. The Tehsildar, Rangat in a subsequent report has found that although the establishment of the petitioner No. 2 is located beyond the Jarawa tribal area but falls within the buffer zone. There is no material produced by the petitioners before this Court in this writ petition that the establishment of the petitioner No. 2 is beyond the buffer zone which lead to an inevitable conclusion that the establishment of the petitioner No. 2 is located within the buffer zone.

In view of the mandatory order passed by the Apex Court in the said SLP that henceforth no commercial or tourism activities shall be carried out by the Administration or any private individual in violation of the prohibition contained in notification dated 30th October, 2007 the prayer for quashing and setting aside the notification dated 30th October, 2007 could not be passed.

Since the basis of the order dated 23rd July, 2010 is the aforesaid notification which has been found to be unconditional and valid by the Apex Court, this Court also does not find any fault therein.

In the result, the writ petition is dismissed. There shall, however, be no order as to costs.