JUDGMENT
Amitava Roy, J.
1. The challenge in the instant proceedings is directed against the demolition drive of the Gauhati Municipal Corporation (hereinafter referred to as the ‘Corporation’) involving the 5th and 6th floors of the petitioner’s building/apartment at Tokobari Satra, A.T. Road, Guwahati and the inaction of the authorities thereof, to act in terms of the directions of the Standing Appellate Committee of the Corporation (hereinafter referred to as the ‘Appellate Committee’) as contained in its judgment and order dated 05.05.2000 passed in Appeal case No. GCL/16/2000.
2. This Court while issuing notice of motion on 28.08.2003, in the interim, restrained the Corporation authorities from proceeding with the demolition exercise.
3. I have heard M Dutta, Senior Advocate, assisted by MN. Srinivasan, Advocate for the petitioner and M Deka, learned Senior Standing Counsel for the Corporation.
4. The factual matrix in short, is that the petitioner is a Company with its registered office at Tokobari Satra, A.T. Road, Guwahati and on the basis of the permission granted by the Corporation vide order No. GPL/28/13/99/31/902 dated 06.12.1999, started construction of its residential complex cum ownership apartments thereon. Though, the petitioner had sought permission from the Corporation to construct the building upto its 6th floor, the permission, only upto the 4th floor was sanctioned. Being aggrieved, the petitioner preferred an appeal before the Appellate Committee under Section 438 of the Gauhati Municipal Corporation Act, 1971 (hereinafter referred to as the ‘Act’) The Appellate Committee by its order dated 05.05.2000 allowed the appeal with the following operative directions:
From the above observation and discussion is our considered opinion the appellant’s case deserves consideration. Accordingly, we hold that the appellant be accorded permission as sought for, i.e., to construct the 5th and 6th Floor of its proposed apartment building by keeping 15′-0′ margin on the north without cantilevers projection, 10′-0′ side margin on the Western side without cantilever projection, 50′- 0′ margin towards Southern side and 10′-0′ towards Eastern side (already approved). We hereby set aside the impugned order, as aforesaid, passed by the respondent.
In the result, the appeal is allowed.
The learned Commissioner, G.M.C., the respondent be directed accordingly. He is further be directed to impart necessary instructions, guidelines etc. to the appellant for prepare execution of its project and to supervise the construction from time to time through his expert engineers.
Acting on the said directions, the petitioner started construction works of the 5th and 6th floors of the residential complex and completed the same. While the matter rested at that, on 27.08.2003, a demolition drive was initiated by the Corporation authorities along with men and machineries. This was, however, without any prior notice. Situated thus, the petitioner rushed to this Court and was provided with the interim protection noticed hereinabove. The above contextual facts are in WP(C) No. 6855/2003. In the same factual background, the petitioner has prayed for a writ of mandamus to the Corporation authorities to allow it to complete the construction of the 5th and 6th floor of its building in terms of the order dated 05.05.2000 of the Appellate Committee.
5. The Corporation in its affidavit filed in both the writ petitions have taken a stand that the permission to construct the 5th and 6th floors was denied to the petitioner as it was not permissible under the Building Bye laws framed by the Corporation. Their categorical plea is that before resorting to the demolition process, a notice under Section 337 of the Act dated 10.07.2003 was served on the petitioner. It, however, remained unresponded from their end. While admitting that the appeal preferred by the petitioner before the Appellate Committee was allowed, the pleaded stand of the Corporation is that the construction of the 5th and 6th floors of the petitioner’s apartment/building being in contravention of the ‘No Objection Certificate’ dated 06.12.1999, demolition of the said two floor was valid and justified.
6. Mr. Dutta has argued in the above factual premises that the Appellate Committee of the Corporation having granted permission to the petitioner to construct, the 5th and 6th floors of its apartment/building subject to the conditions as specified therein after examining all relevant aspects, the impugned action of the Corporation authorities in demolishing the said two floors of the petitioner’s constructed strictly in terms of the stipulations prescribed by the Appellate Committee is without any authority of law and is liable to be adjudged as such. Referring to the notice dated 10.07.2003 said to have been served under Section 337 of the Act, the learned Senior counsel urged that, a plain reading thereof, would reveal that the allegations pertaining to unauthorized construction and the deviations do not relate to the 5th and 6th floors of the petitioner’s building constructed in terms of the specifications ordained by the Appellate Committee and, therefore the impugned action is not in accordance with law. According to him, as the order of the Appellate authority in terms of Section 438 of the Act has attained finality and the inaction on the part of the Corporation authorities to permit the petitioner to complete the construction of the 5th and 6th floor of its building/apartment in terms thereof, is without any justification whatsoever, it is a fit case in which a writ of mandamus be issued directing the Corporation and its authorities to allow the petitioner to complete the constructions as above.
7. Mr. Deka, learned Senior Standing Counsel for the Corporation, on the other hand, has argued that the permission for construction of the 5th and 6th floors of the petitioner’s building/apartment was rightly declined as having regard to the plan submitted for the purpose, it was not permissible as per the relevant provisions of the Building Bye laws of the Corporation. Mr. Deka sought to support the demolition process on the ground of failure on the part of the petitioner to show cause against the unauthorised constructions and deviations as mentioned in the show cause notice dated 10.07.2003. the learned Senior counsel, however, candidly submitted that in the face of Section 438 of the Act, directions of the Appellate Committee as contained in its order dated 05.05.2000 have attained finality and are otherwise, binding on the Corporation authorities.
8. The rival contentions of the parties have been carefully weighed. In view of the admitted position with regard to the finality of the directions of the Appellate Committee, it would be apt to notice the directions issued by it while disposing the petitioner’s appeal. A plain reading of the operative portion of the order extracted hereinabove manifests the intention of the Appellate Committee to grant permission to the petitioner for construction of 5th and 6th floors of its apartment/building subject to the following conditions–
i) Keeping 15′-0′ margin on the North without cantilever projection;
ii) Keeping 10′-0′ side margin on the Western side without cantilever projection;
iii) Keeping 50′-0′ margin towards Southern side and
iv) Keeping 10′-0′ towards Eastern side (already approved).
The Commissioner of the Corporation was further directed to impart necessary instructions guidelines etc. to the petitioner for proper execution of its project and to supervise the construction works from time to time through its engineers.
9. Having regard to the recorded discussion preceding the directions of the Appellate Committee noticed hereinabove, there cannot be any manner of doubt that the petitioner in law, was entitled to construct the 5th and 6th floors of its apartment/building subject to the specifications mentioned therein. This was on 05.05.2000, and the demolition took place on 27.08.2003, i.e., more than three years thereafter.
10. The show cause notice dated 10.07.2003 has two parts. The first part pertains to the so called unauthorized construction, particulars whereof are detailed in Schedule-A. and the second part relates to alleged deviations from the approved plan catalogued in Schedule-B. The petitioner was asked to discontinue the works undertaken and to show cause as to why the unauthorized constructions/deviations should not be demolished. The notice therefore, has to be essentially confined to the alleged unauthorized constructions and deviations as specified therein.
11. The particulars set out under Schedule-A of the notice indicate that the construction of the 5th and 6th floor of the petitioner’s building are unauthorized. No ‘data’ was furnished as to why the same is unauthorized, more particularly in face of the permission granted by the Appellate Committee as referred to above. Schedule-B unmistakably deals with the construction of the ground floor to 4th floor of the building. The particulars of the deviations as mentioned in the table appearing in the said schedule thereof, logically cannot be related to the 5th and 6th floors of the petitioner’s building/apartment. This is further clear from the contents of the notice which demonstrate that the alleged deviation pertains to the approved plan for the construction involving ground floor to 4th floor. In all, therefore, except mentioning that the constructions of the 5th and 6th floors of the petitioner’s apartment/building were unauthorized, the same do not disclose any material whatsoever for the above supposition. This assumes importance in view of the fact that admittedly, the demolition process involved only 5th and 6th floor of the petitioner’s building. The irresistible conclusion therefore, is that the 5th and 6th floors of the petitioner’s building/apartment were demolished without issuing any prior notice therefore, as envisaged under Section 337 of the Act.
12. In other words, the decision as well as execution thereof qua, demolition of the 5th and 6th floors of the petitioner’s building cannot be justified on the basis of the show cause notice dated 10.07.2003. The contention raised on behalf of the petitioner that the demolition was effected without any prior notice therefore, has to be accepted.
13. The assertion on behalf of the Corporation that the 5th and 6th floor of the petitioner’s building was unauthorized as no permission therefor was granted, falls to the ground in the teeth of the directions of the Appellate Committee noticed hereinabove. This is particularly so, when admittedly, the said directions have become final and binding on them under Section 438 of the Act. On the basis of the materials available on record therefore, it is not possible to hold that the petitioner’s constructions relating to the 5th and 6th floor of the building were in contravention of the stipulations contained in the directions of the Appellate Committee.
14. The learned Standing Counsel for the Corporation has not been able to bring to the notice of this Court any provision of law or facts on record to hold that the petitioner is not entitled to complete the construction of its 5th and 6th floors of the building/apartment in conformity with the conditions specified by the Appellate Committee in its order dated 05.05.2000.
15. In that view of the matter, in the attending facts and circumstances, I am of the considered opinion that the petitioner is entitled to a direction to the Corporation authorities requiring the latter to permit it to complete the construction of 5th and 6th floors of its building in accordance with the norms contained in the operative portion of the order of the Appellate Committee referred to above. Ordered accordingly, it is made clear that the Commissioner of the Corporation while acting in terms of this direction would ensure that the conditions specified by the Appellate Committee in its order for construction of the 5th and 6th floors of the petitioner’s building are strictly complied with. The process for completing the official formalities in this regard, having regard to the fact that the petitioner had once raised its 5th and 6th floor which got demolished, though partially, would be completed within a period of six (6) weeks from the date of receipt of the certified copy of this order.
16. In the wake of the above, the petitions are allowed. No costs.