Kula Prasad Gogoi vs State Of Assam And Ors. on 23 November, 2007

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Gauhati High Court
Kula Prasad Gogoi vs State Of Assam And Ors. on 23 November, 2007
Equivalent citations: 2008 (1) GLT 98
Author: A Potsangbam
Bench: J Chelameswar, A Potsangbam


JUDGMENT

Asok Potsangbam, J.

1. Heard Mr. A. Sarma, learned Counsel appearing for the petitioner. Also heard Mr. U.C. Nath, learned Counsel, Mr. S. Chamaria, Standing Counsel, GMC and Mr. G.N. Sahewalla, learned senior Counsel for the G.M.C.

2. This is the second round of litigation. By the instant writ petition, the petitioner is seeking to quash the order dated 22.6.2007 passed by the Commissioner, Guwahati Municipal Corporation, disposing of the representation dated 10.4.2007, which was filed by the petitioner pursuant to judgment and order dated 26.3.2007 passed by this Court in the first round of litigation i.e. W.P. (C) No. 1340/2007. The Commissioner, Guwahati Municipal Corporation, disposed of the aforesaid representation by holding that the building constructed by the petitioner was unauthorized and without necessary approval of the authority and, consequently, GMC was directed to take necessary action against the unauthorized constmction of the petitioner as per GMC Act and Building Byelaws framed thereunder.

3. The case of the petitioner is that on 11.3.1998, he applied for permission, as required under Section 328 of the GMC Act, for construction of his residential building over a plot of land at Uzanbazar, Guwahati and as the permission was not forthcoming even after waiting for 60 days, he went on with the construction of his residential building. The further case of the petitioner is that after completion of first floor, he applied for assessment of his residential building and GMC, after due assessment, allotted Holding No. 95 to the writ petitioner. The petitioner also annexed few receipts showing payment of, Municipal Taxes, Urban Taxes etc. in respect of Holding No. 95 i.e. residential building of the petitioner.

4. The case of Respondents No. 2 and 3 i.e. Guwahati Municipal Corporation, is that a complaint dated 6.2.2006 was received by the office of the GMC from the proforma Respondents No. 7 and 8 who claim to be the persons residing on the western side of the petitioner’s building, alleging therein that the construction of the petitioner’s residential building is without necessary permission from the GMC and without approval of any building plan etc. and that the aerial projection of the building of the petitioner had encroched upon the land of the Respondents No. 7 and 8 etc.

5. In order to ascertain the allegations made in the aforesaid complaint, GMC caused a site inspection by its engineers to enquire into the allegations and in that, it was found that the consumption in question did not maintain setbacks and other norms prescribed by the GMC Act and Building Byelaws and this led the GMC to issue a notice dated 2.3.2006 asking the petitioner to stop further construction and to produce the approved plan and NOC issued to him in connection with the construction of his building. A photocopy of the NOC dated 12.10.2004 was submitted by the petitioner and on verification from records, GMC found the aforesaid NOC a forged one and, as a consequence thereof, an FIR was lodged and Latasil Police Station Case No. 3232 of 2007 under r Sections 420/468/471 I.P.C. was registered.

6. On 15.3.2007, GMC issued another notice under Section 337 of the GMC Act, 1971, directing the petitioner to discontinue with further construction of his building and submit a show cause reply within seven days as to why the unauthorized construction/deviation should not be demolished. The petitioner, instead of replying to the notice mentioned above, chose to challenge the notice dated 15.3.2007 before this Court by filing a writ petition being W.P. (C) No. 1340 of 2007 and this Court was pleased to dispose of the said writ petition by an order dated 26.3.2007 directing the petitioner to file a detailed representation to the Corporation by highlighting all his grievances within 15 days and the Corporation was also directed to dispose of the representation by passing a speaking order within a period of one month. The representation so submitted by the petitioner was considered and rejected by the Corporation by an order dated 22.6.2007 and this order which is impugned herein is sought to be quashed in this writ petition. The impugned order, which is self-explanatory, reads as follows:

Office of the Guwahati Municipal Corporation: Guwahati: Panbazar: Guwahati-781 001 GPL/UC/34/21/2006/175-A Dated 22.06.2007 File No. GPL/UC/34/21/2006-Kula Prasad Gogoi

ORDER

The Guwahati Municipal Corporation received a complaint on 06.02.2006 from Sri Dilip Sarma and Smt. Aparajita Sarma alleging illegal construction by Sri Kula Prasad Gogoi whose house is on the eastern boundary of the complainant. On site inspection by the Corporation it was found that the construction in question is a G+ first floor building and the setbacks were not maintained as per norms. The Corporation, therefore, issued notice to Sri Gogoi on 02.3.2006 asking him to stop further construction and to produce the approved plan and NOC issued to him by the Corporation. An another notice was also issued on 04.8.2006 calling for the same documents.

Sri Kula Prasad Gogoi submitted a photocopy of NOC purportedly issued to him bearing No. GPL/34/9/98/28/529 dated 12.10.2004. On verification of the concerned records, it was revealed that no such NOC has been issued by the Corporation and the one submitted by Sri Gogoi is a forged document. The Guwahati Municipal Corporation, therefore, lodged a FIR with the Officer-in-Charge, Latasil P.S. on 09.11.2006 for investigation and necessary action on the matter.

The Corporation has thereafter issued a notice to Sri Kula Prasad Gogoi under Section 337 of the GMC Act, 1971 on 15.3.2007 directing him to discontinue the constructional work and to show cause within 3 (three) days as to why the unauthorized construction/deviation should not be demolished. However, Sri Gogoi challenged the aforesaid notice dated 15.3.2006 before the Hon’ble Gauhati High Court disposed of the writ petition by its order dated 26.3.2007 with a direction to the petitioner to file a detailed representation highlighting all the grievances as narrated in the writ petition within 15 (fifteen) days, and on receipt of such representation the authorities shall issue notice to all interested parties, including Mrs. Aparajita Sarma and Mr. Dilip Sarma, and after hearing the parties shall dispose of the said representation by passing a speaking order in accordance with law within a period of one month.

In pursuance to the above order dated 26.3.2007 passed in W.P. (C) No. 1340/2007, Sri Gogoi filed his representation on 10.4.2007.

In his representation, Sri Gogoi has stated that vide an application dated 11.3.1998 filed before the Corporation he had applied for issuance of a NOC for constniction of G + first floor of RCC residential building. However, after expiry of six months he started construction as he was advised by some office staff of the Corporation to go ahead with the construction as formal NOC may take some more time. After construction of ground and first floor, the building was assessed by the GMC in 2002, and, since then he has been regularly paying taxes to the Corporation. He has also stated that he has submitted a copy of the NOC dated 12.10.2004 as asked for by GMC. He has also contended that as per decision of Hon’ble High Court in Jadav Ch. Das v. GMC his building cannot be demolished after more than 4 (four) years of completion and assessment. Moreover, the corporation ought to have passed some order on his application for building permission within 60 (sixty) days under Section 328(4) of the GMC Act 1971. Futhermore, as he stated, his building is in absolute conformity with the Building Byelaws, Master Plan and Zoning Regulations.

Sri Gogoi has admitted that he has started construction after six months from the date of submission of his proposal for construction of his building. The copy of the NOC however, as furnished by Sri Gogoi is a forged document as noted above and a FIR has been lodged to that effect. The contention of Sri Kula Prasad Gogoi that his building cannot be demolished after more than four years of completion and assessment is not tenable because assessment does not regularize an illegal/unauthorized construction. The Division Bench of Hon’ble Gauhati High Court has held in Priyanka Estate International (P) Ltd. v. State of Assam decided on 28.6.2006, that unless the building plan is approved, no construction can be made by any person. Moreover, unauthorized construction which is non-compoundable under Appendix-Ill of the Building Byelaws cannot be regularized by levying penalty.

Hence, after perusal of all the available records submitted by both Sri Kula Prasad Gogoi and Sri Dilip Sarma & Smti Aparajita Sarma and also after taking personal hearing of the parties, it can be concluded that Sri Kula Prasad Gogoi does not have any approved plan or valid NOC from competent authority. As such, the building constructed by Sri Gogoi is unauthorized. Associate Planner, GMC is directed to take necessary action against the unauthorized construction of Sri K.P. Gogoi as per GMC Act & Byelaws.

This disposes of the representation dated 10.4.2007 filed by Sri Kula Prasad Gogoi pursuance to an order dated 26.3.2007 passed by the Hon’ble Gauhati High Court in W.P. (C) No. 1340/2007.

Let a copy of this order be furnished to the Asstt. Registrar (I & E), Gauhati High Court, for informing compliance to its order as stated above.

Also furnish a copy of this order to concerning parties of the case.

Commissioner
Guwahati Municipal Corporation
Guwahati.

7. We may remind ourselves that this Court in MIST:. Case No. 2483 of 2006 (in W.P. (C)(Taken-up) No. 1200 of 2006), vide order dated 22.11.2006, held that the deeming provision as contained in Section 328 of the GMC Act, 1971 is directory, without any resultant consequence in default thereof. Section 328 reads as follows:

Section 328: Notice of building

(1) Every person who intends to erect or reerect a building shall submit to the Corporation-

(a) An application in writing for approval of the site, together with a site plan of the land, and documents of title and, in the case of land which is the property of the Government or of the Corporation a certified copy of the documents authorizing him to occupy the land and if so required by the Commissioner, the original document or documents; and

(b) An application in writing for permission to execute the work together with a ground plan, elevations and sections of the building and a specification of the work.

(2) Every plan of any building to be constructed wholly or partly of masonry submitted under Sub-section (1), shall, in token of its having been prepared by him or under his supervision, bear the signature of a surveyor, licensed or duly approved by the Corporation.

(3) Every document submitted under Sub-section (1) shall be prepared in such manner and shall contain such particulars as may be required by bye-laws made in this behalf.

(4) Nothing herein contained shall require a person to comply with the provisions of Clause (b) of Sub-section (1) of this section until such time as the site has been approved by the Commissioner or such person as he may direct;

Provided that an application shall be disposed of within 60 days from the date of receipt.

8. In the aforesaid case, it was also held that under provisions of Sub-section (4) of Section 25 of the Guwahati Metropolitan Development Authority Act, 1985, permission can be presumed. However, such deemed permission would not enable a builder to flout the provisions of the building byelaws etc. Therefore, the learned Counsel of GMC submits that unless a building plan is approved, no construction can be made in any area lying within the jurisdiction of GMC and GMDA. The relevant portion of Section 25 of the Guwahati Metropolitan Development Authority Act, 1985 reads as follows:

Section 25 : Permission for development:

(1) …

(2) …

(3) …

(4) The Authority shall not refuse the permission except on the ground of contravention of proposals contained in the plan or the Zoning Regulations and unless the permission has been refused within a period of one month from the receipt of the application or such other information as may be called for by the Authority under Sub-section (3), it shall be presumed that be the permission has been given.

9. On consideration of the rival submissions including the submission made by the Proforma Respondents, question for consideration before us is two fold–(i) Whether the entire building of the petitioner, if found to have been made as alleged, without necessary approval of the building plan, permission and NOC, be held as an illegal construction thereby entailing demolition of the entire building or not? and (ii) Whether only the part/portion of the petitioner’s building which may be found in deviation of norms and provisions prescribed by the GMC Act and Building Byelaws, be held as illegal and such deviated part/portion of the building be demolished or not?

10. Referring to the first issue, it is undisputedly on record that the construction of the petitioner’s building have been made with the knowledge of the concerned authorities including the GMC inasmuch as the building was assessed, holding number was allotted and taxes were collected. The fact that the permission was sought as far back as in 1998 and that after completion of the first floor, petitioner has been paying taxes from 2002 onwards and this fact goes to show that the construction of the first floor was already completed sometime in 2002. As discussed above, the deemed permission as claimed by the petitioner is purportedly under Section 328 of the GMC Act, and the same has been held as directory, and, it is not a case of the petitioner that he had a deemed permission under Section 25 of the GMDA Act. Be that as it may, at this stage, we do not propose to declare the whole of the building of the petitioner as illegal thereby rendering the same liable for demolition just because there was no approved plan and necessary permission at the time of construction.

11. Referring to the second issue, provisions and norms prescribed, for construction of building, by the Building Byelaws is to ensure that the growth of the Guwahati Metropolitan city is orderly, disciplined and safe for the future and no public inconvenience is caused by any unauthorized construction. It is therefore, necessary that the norms and provisions prescribed by the GMC Act and Building Byelaws are to be strictly adhered to by all builders in the city. It is noticed that the affidavit dated 20th August, 2007 filed by the Respondents No. 2 and 3 (Corporation) did not disclose or indicate the extent of deviation or violation of the norms so as to enable this Court to pass appropriate orders and no statement in this regard has been made in the affidavit of the Corporation. In order to enable this Court to understand the extent of deviation and violation of the norms, the learned Counsel appearing for the Corporation was asked to obtain instructions from the Corporation. On 13.11.2007, the learned Counsel placed a report prepared by a group of engineers of the Corporation, after inspection of the petitioner’s building, and this report was later on incorporated in the affidavit dated 15th November, 2007 filed by the Corporation. Paras 3,4 and 5 of the affidavit, which would show the extent of deviation and violation of the provisions of the Bye-laws, are extracted below:

3. That, the concerned Zonal Engineer of GMC made a visit at the site of the Writ Petitioner (K.P. Gogoi) on 07.11.2007 and measured the building in detail and found inter-alia the following findings which are narrated herein as follows:

1) Zone: Residential

2) Use : Residential upto G + 1, 2nd floor slab casting only and is vacant

3) Type of Construction : R.C.C.

4) Floor area:

————————————————–

 Floor       As per NOC  Maintained   Deviation
             submitted
 --------------------------------------------------
Ground       57.62 Sq.m. 96.62 Sq.m.  41.00 Sq.m
First        68.26 Sq.m. 100.46 Sq.m. 32.20 Sq.m.
Second         NIL       100.46 Sq.m. 100.46 Sq.m.
                         (Slab casting
                          only)
 --------------------------------------------------
 

5) If any extra floor: 2nd floor as per N.O.C. submitted
 

6) FAR : Considering land area as 133.83 Sq.m. (approx) F.A.R. permissible is 100 andmaintained FA. R. is as below:
  F.A.R (G+2)  =  98.62 + 100.46 + 100.46
                 _______________________ 
                         133.83
              =  233.83
 F.A.R (G+1)  = 98.62 + 100.46
                ______________
                    133.83
              = 148.76
7) Coverage:  = 98.62
                ______ = 73.69%
                133.83
 ___________________________________________________________________________________________________________________
Set    As per              As per   bye-                 ntained     Deviation  as per-
Back   summitted  NOC      summit   lawted      As mai               NOC        submitted   Deviation    as per
___________________________________________________________________________________________________________________
        Margin  Centilever  Margin   Centilever Margin    Centilever  Margin     Centilevei  Margin     Centilevei
___________________________________________________________________________________________________________________
North    7'0"    Nill       3.00m     1.50m     0.34m      Nil        1.76        Nil         2.66m       Nil
(Rear)  (2.10m)                       (Av.)     (Av.)

South     10'0'  Nill       3.00m     1.50m     1.97m     Landing=    1.03m      Varanda      1.03m     Landing
(Front)  (3.00m)                      Open      (Av.)     1.99x1.21                 &                      &
                                                          Veranda=               Landing                varanda
                                                          1.46x4.60

East      5'0"   Nill       1.50m     Nill      0.83m     8.24x0.75   0.67m      Can't he      0.67m     0.75
(Side)   (1.50m)                                (Av.)         &                  deter-                  Conts.
                                                          1.75x0.75              mined         0.49m     Beyond 
                                                                                 due to                   1/4th
                            1.50m     Nill      1.01m                 0.49m      lack of
West      5'0"   3'0'                           (Av.)                            site plan
(Side)  (1.50m) (0.90m)
__________________________________________________________________________________________________________________

  

The plot is accessible from main road by a lane of 1.20m wide. But in front of the plot the road merges into an open space (3.10m x 4.60m).
 

4. The vital deviation which has been found in course of this particular verification are as follows:
 

(A) The builder maintained the F.A.R. upto 233.83 whereas as per Building Bye-laws it is permissible only 100 F.A.R. Therefore he is maintaining excess 133.83 F.A.R. in addition to the permissible limit.

(B) The builder maintained coverage upto 73.69% whereas he was permissible upto 50%. Therefore he is maintaining excess 23.69%.

(C) The builder maintained all setbacks in excess to the permissible limits of Building Bye-laws.

5. That, from the above findings it is apparent that the Writ Petitioner (K.P. Gogoi) constructed his building with flagrant violation of the then Building Bye-Laws of the GMC in respect of F.A.R., coverage and setback. There are both compoundable and non-compound able deviations.

12. The above extracted report of the engineers, as explained in the affidavit, would clearly establish that there is deviation and violation of the provisions and norms prescribed by the GMC Act and Building Bye-laws framed thereunder and, as such, the part/portion of the building found to have been in deviation as contained in the report of the Corporation, as extracted above, is illegal and liable to be demolished. Accordingly, it is ordered that the deviated part/portion of the petitioner’s building, as contained in the report extracted above, be demolished by the GMC authority within a period of one month from the date of this order. In the facts and circumstances, we do not find any ground to interfere with the impugned order No. GPL/UC/34/21/2006/175-A dated 22.6.2007 passed by the Commissioner, Guwahati Municipal Corporation. The writ petition is disposed of in terms of the direction given above. No order as to costs.

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