High Court
Case Details
WP(C) 5240/2007 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH JUDGMENT AND ORDER (CAV) (I Shah, J) With the help of this writ petition, made under Article 226 of the Const itution of India, the petitioner has put to challenge the orders, dated 23.03.20 04 and dated 08.01.2006, issued by Chief Executive Officer, Guwahati Metropolita n Development Authority (hereinafter referred to as ’GMDA’), Bhangagarh, Guwahat i, whereby the permission, accorded to the petitioner for construction of buildi ng, stands revoked and the petitioner has been directed to demolish the unauthor ized construction.
Legal Reasoning
2. The petitioner, in this writ petition, has averred that he is the owner and possesor of a plot of a land measuring 2 kathas 2 lechas, out of the total land measuring 4 kathas, covered by Dag Nos. 2962 and 2963 of K.P. Patta No. 773 , situated at Sahar Sarania, Part-II, of Ulubari Mouza and, as the owner and po ssessor of the said plot of land, he (petitioner) applied, on 09.08.2001, to the GMDA seeking permission to erect an RCC building for commercial purpose. It is the contention of the petitioner that, later on, he changed his plan and, accord ingly, applied to the GMDA seeking permission for construction of a residential building and the respondents/authorities concerned, on being satisfied, issued a ’No Objection Certificate’ (NOC), dated 14.11.2002, permitting construction of a residential building on the petitioner’s said plot of land. By the impugned order, dated 23.03.2004, the respondent No. 2 has, however, revoked the NOC, dat ed 14.11.2012, whereby the permission for construction of a residential building had been issued in favour of the petitioner and declared the construction of th e building as unauthorized one. It is the petitioner’s further case that therea fter, vide letter, dated 01.01.2004, the respondent/authorities concerned issued a Show-Cause Notice to the petitioner asking him to show cause, if any, as to w hy legal action shall not be taken against unauthorized construction and for sub mitting false documents to obtain NOC. In response to the notice of show cause , so issued, the petitioner submitted, on 06.01.2004, his reply denying the alle gations levelled against him. However, another notice, dated 26.09.2005, was is sued to the petitioner by the respondents/authorities concerned, directing the p etitioner to stop the unapproved construction and to show cause as to why the bu ilding, constructed without necessary approval, shall not be demolished. The pet itioner submitted his reply to the later notice too. But, vide the impugned ord er, dated 08.01.2006, the petitioner has been directed to demolish the unauthori zed construction. It has also been averred by the petitioner, in his writ petit ion, that though the order for demolition of the petitioner’s building was shown to have been passed on 08.01.2006, the same had not been served upon the petiti oner and a photostat of the said notice was served, on the petitioner, only on 2 9.09.2007. The petitioner’s contention is that after having obtained valid perm ission from the authority concerned for construction of his RCC building, he (pe titioner) had started the construction and the construction of the building als o was as per the approved plan, that he had never contravened the Master Plan or the Zoning Regulations, that he had completed construction of his RCC building within the time stipulated and permitted for the purpose and, therefore, the res pondent No. 2 had no power to issue order of revocation of the permission, once granted, on any ground other than violation of the Rules and Regulations prescri bed pursuant to the power conferred on the authorities concerned by the Guwahat i Metropolitan Development Authority Act, 1985 (in short ’the 1985 Act’). Moreov er, the petitioner was not given any opportunity of being heard before revocatio n of the said permission, granted to him, which is contrary to the provisions of section 87 of the 1985 Act. 3. ve filed their affidavit-in-opposition, their case being, in brief, thus: Controverting the averments of the petitioner, respondent No. 1 and 2 ha (i) An application, dated 09.08.2001, was submitted by the petitioner to the GMDA, seeking permission for construction of two storied RCC building for c ommercial purpose, but the petitioner’s application was rejected by the High Ris e Committee in its meeting, held, on 18.10.2001, on the ground that the construc tion of the said building, exclusively for commercial use, is not permissible as per the Zoning Regulations, because the said plot of land falls in the resident ial (High) Zone. Thereafter, the petitioner submitted, vide his letter, dated 25 .02.2002, a revised building plan for commercial-cum-residential purpose. The sa id proposal was placed before the High Rise Committee and the Committee directed for site inspection to be carried out in respect of the building plan submitted by the petitioner. On 31.05.2002, one Sheikh Noor Islam (respondent No.5) filed an objection, wherein he stated that the land, in question, was a joint propert y of 4 (four) brothers including the petitioner, Sheikh Noor Islam, and that a T itle Suit, being Title Suit No. 32 ofn1995, in respect of the said joint propert y, was pending in the Court of the Civil Judge, Senior Division (No. 2) at Kamru p. In the said objection, Sheikh Noor Islam prayed for cancellation of the No Ob jection Certificate issued to the petitioner by the GMDA. Thereafter, the town planner, GMDA, vide letter, dated 29.08.2002, requested respondent No. 5 to furn ish proper documents in support of his objection. As Sheikh Noor Islam (respond ent No.5) failed to furnish any document and as there was no further communicati on from his side, the matter was placed, once again, before the High Rise Commit tee and the said Committee approved the plan of the petitioner subject to certai n conditions stipulated therein, which, amongst others, included submission of ’ No Objection Certificate’ from the co-pattadars. The petitioner, then, vide lett er, dated 23.10.2002, submitted an affidavit, dated 19.10.2002, wherein the peti tioner’s three brothers, namely, Sheikh Noor Islam, Sheikh Noor Ahmed and Sheikh Noor Jaman, were shown to have declared that they were joint-pattadars of the land and that they had no objection to the construction of the proposed building by the petitioner on the land, in question. (ii) Pursuant to the affidavit, so filed by the said brothers of the pet itioner, the High Rise Committee issued No Objection Certificate, dated 14.11.20 10, allowing the petitioner to construct the RCC building. (iii) Thus, permission was granted to the petitioner for construction of his proposed building on the basis of the said affidavit, dated 19.10.2002, whe reby the petitioner’s three brothers, as indicated above, were shown to have exp ressed no objection to the construction of the proposed building by the petition er on the land, in question. However, on 27.05.2003, again, a complaint was rec eived from Sheikh Noor Islam, brother of the petitioner, stating to the effect, inter alia, that the said plot of land was under litigation and the that the bro thers of the petitioner, who were co-owner of the joint property, had not submit ted any affidavit before the authority. On receipt of this complaint, the petit ioner was asked by the State respondents to stop construction until further orde rs and to inform the authority about the status of Civil Suit as well as Misc. C ase pending before the Civil Court. Further, the petitioner was asked to give e xplanation against the allegations with regard to forging of signatures in the a ffidavit. The petitioner, in his reply, stated that the scheduled land, in the Title Suit as well as in the Misc. Case, was different from the land for which p ermission for construction and NOC had been granted. (iv) What, however, led the State respondents to make the order, which s tand impugned in the present writ petition, is that, in his reply, the petitione r further stated that he had never submitted any affidavit to the authority conc erned for the purpose of obtaining permission for construction of building. As the petitioner continued the construction in spite of direction to stop construc tion, the respondents/authorities concerned stopped the construction of the buil ding with the help of police. In these circumstances, the permission/NOC, dated 14.11.2002, issued to the petitioner was revoked by the authorities by the impug ned order, dated 23.03.2004. (v) Thereafter, notice, dated 26.09.2005, was issued, under Section 87 o f the 1985 Act, asking the petitioner to show cause as to why the unauthorized c onstruction, which had been carried out by the petitioner, shall not be demolish ed. By the said notice, the petitioner was also asked to appear before the autho rity, on 06.11.2006, with all relevant documents including the records of the Co urt cases, etc. As the petitioner was not available at his residence, the notic e was served on the wife of the petitioner and, though the petitioner’s wife acc epted the notice, she refused to put her signature acknowledging the receipt of the notice. Thereafter, notice, under Section 88 of the Act, was issued by the a uthority concerned asking the petitioner to demolish the unauthorized constructi ons within 5 (five) days of the receipt of the notice; but the petitioner refuse d to accept the said notice, whereupon the notice was hanged on the wall of the petitioner’s residence. However, as the petitioner failed to comply with the dir ection, given by the respondents/authorities concerned, for almost 10 (Ten) mont hs, the respondents/authorities concerned took steps for demolition of the build ing with the help of the Deputy Commissioner, Kamrup, and the Police. 4. It is the contention of the respondent Nos. 1 and 2 that the High Rise C ommittee had approved the application of the petitioner, seeking permission for construction of building, subject to fulfillment of certain conditions, which in cluded the submission of an affidavit of NOC from other co-pattadars of the land . When the petitioner submitted the affidavit, purportedly sworn by the 4 (Four ) pattadars, who were the co-owner of the land, in question, the NOC/Certificate , dated 14.11.2002, was issued by the GMDA. It is contended by the State respo ndents that the GMDA Bye-laws provide that for obtaining permission for construc tion of building, documents, justifying ownership of the land, are to be submitt ed by the applicant, seeking permission for construction of building, and, in th e event of the land not owned by the applicant, NOC, in the form of affidavit, a llowing the applicant to construct, has to be submitted by the owner(s)/pattadar (s) of the land, in question. In the present case, the land, in respect of whic h petitioner applied seeking permission for construction, was jointly owned by t he petitioner and his brothers. The petitioner had submitted an affidavit, claim ing his brothers having expressed their concurrence/ agreement in the petitioner ’s constructing of the building on the land, in question; but, on the contrary, his brothers claimed that their signatures had been forged and the permission wa s obtained by the petitioner on the basis of forged affidavit and that trying to disengage himself completely from the affidavit, in question, the petitioner cl aims that he never submitted the said affidavit meaning thereby that no affidavi t from the co-pattadars, expressing their no objection, had been furnished by th e petitioner to the respondents/authorities concerned, though submission of the ’No Objection Certificate’ was one of the conditions stipulated in the permissio n for construction, which had been granted in favour of the petitioner.
Decision
5. Respondent No. 5 (i.e., brother of the petitioner), in his affidavit-in- opposition, has submitted that a Title Suit seeking a decree of declaration, par tition and permanent injunction has been pending in the Court of the Additional District Judge, Kamrup, and that a petition, seeking injunction, has also been f iled there and the learned Additional District Judge, by order, dated 01.03.1995 , passed, in Misc. Case, has directed the petitioner to abstain from raising any construction on the land, in question. However, while the said injunction orde r was in force, the writ petitioner had, by suppressing the relevant facts, soug ht for permission from the GMDA to construct the RCC building claiming himself a s an absolute owner of the land. According to respondent No. 5, the plot of land, in question, is a joint property and is under litigation, that neither res pondent nor his brothers signed any affidavit, as submitted by the writ petition er before the respondent authority, that the eldest brother of the petitioner, n amely, Sheikh Noor Ahmed, whose signature appeares in the affidavit, dated 19.10 .2002, expired on 14.03.1996 and that the un-registered partition deed, submitte d by the petitioner, was also forged. 6. in paragraph 45, as under: In the reported case of 2000 (1) GLT 457, it was observed by the Court, (cid:28)In view of the above discussion, it is held that power of scrutinizing permission after coming into force of the Master Plan and Zoning Regulation, to carry out development work is with G.M.D.A. and such permission can be refused o nly on the contravention of the proposal contained in the Master Plan/Zoning Reg ulation and on no other ground. Further, as stated above, before granting any pe rmission for erection/re-erection of any building, the Commissioner, G.M.C. is b ound to get proposal approved by the G.M.D.A. whose authority is limited to the extent of scrutinizing whether construction would regulate the provisions of Mas ter Plan/ Zoning Regulation and if building Plan satisfy the requirement, G.M.D. A. is bound to give its approval. In the next stage G.M.C. require to examine th e proposal under the provisions of the Act, 1971 and accordingly give permission . The application for permission shall be scrutinized and if found in compliance of the provisions of the Act, 1971 shall issue certificate. Without obtaining c ertificate an applicant shall not proceed with any construction. If such constru ction is proceeded with without obtaining the certificate, such construction sha ll be stopped and liable to be demolished. The machinery constituted by the G.M. C. shall make enquiry time to time so that proper implication of the building pl an is approved and certified by G.M.C. is made (cid:29). 7. In the building Bye-laws of the Guwahati Metropolitan Development Author ity, Clause (1) to Bye law No. 5 provides that every person, who intends to erec t or re-erect or make material alternation in any place, in a building or part t hereof, within the jurisdiction of Guwahati Metropolitan Development Authority, shall give notice, in writing, to the Chief Executive Officer of the authority, of his said intention in the form prescribed from time to time by the authority and such notice shall be accompanied by the plans conforming to the requirements of Sections 25 and 29 of the Act, 1985, in triplicate, on blue or white prints. Sub-clause (g) deals with the documents pertaining to titleship, which reads a s under: (cid:28)Title-ship document to justify the ownership of the land. In c ase the land is not owned by applicant, lease deed or a NOC for allowing applica tion for construction in the form of affidavit. (cid:29) 8. In the present case, the petitioner, admittedly, applied, initially, for construction on the land, in question, a building for commercial purpose, but t he High Rise Committee did not accord permission for the same, because of the fa ct that a wholly commercial building was not permissible in a residential area a nd the land, in question, was, admittedly, situated within a residential area. 9. Consequently, the petitioner changed his plan and sought for permission to construct a residential building on the land, in question. Though an objecti on had been raised by respondent No. 5 to the petitioner’s application, seeking permission to build redsidential building, the said objection was not pursued. However, as a sequel thereto, the High Rise Committee approved the petitioner’s application, whereby the petitioner had sought for permission to construct resid ential building on the land, in question. The permission, so granted, was admit tedly, subject to submission of a ’No Objection Certificate’ from the co-pattada rs of the land, in question, in the form of affidavit. In response to the permi ssion, so granted, an affidavit, shown to have been sworn by the petitioner’s co -pattadars, giving their ’no objection’ to the proposed construction of the resi dential building over the land, in question, was submitted and it was on satisfy ing this condition of submission of an affidavit, shown to have been sworn by th e co-pattadars giving their no objection to the petitioner’s proposed constructi on of residential building over the land, in question, that the permission, in q uestion, was granted. However, while the State respondents contend that the petitioner forged 10. the documents by fabricating the signatures of his co-pattadars and, therefore, the affidavit, so submitted by the petitioner, containing ’No Objection Certific ate’ given by the co-pattadars, was invalid, the petitioner contends that he was not the one, who had submitted the said affidavit. 11. It has been contended before us, my Mr. H.R.A. Choudhury, learned Senior counsel, that respondent Nos. 1 and 2 are incompetent to determine if the said affidavit was forged or fabricated one. Notwithstanding what has been contended, on behalf of the petitioner, th 12. e fact of the matter remains that the permission to construct a building by the petitioner was subject to the submission of ’No Objection Certificate’ from the petitioner’s co-pattadars. Had no affidavit from the co-pattadars been submitte d, there was no question of granting of permission by the GMDA. 13. It is really not material as to whether it was the petitioner, who had s ubmitted the said ’No Objection Certificate’ in the form of affidavit of the co- pattadars, or someone else. What is material is the fact that the permission wa s granted on the basis of the said affidavit shown to have been sworn by the co- pattadars of the land, in question, which even the petitioner disowns. 14. What logically follows from the above discussion is that when the basis for granting permission was the said affidavit, shown to have been sworn by the petitioner’s co-pattadars and if the petitioner was not the one, who had submitt ed the affidavit, no permission, in the light of the conditions, which had been imposed by the High Rise Committee, could have been validly granted. That apar t, admittedly, a civil suit is pending between the parties with respect to the l and and there is also an order of injunction. 15. To put it a little differently, in absence of any No Objection Certifica te from the petitioner’s co-pattadars allowing the petitioner to construct build ing on the land, in question, having been furnished by the petitioner, it cannot be said that a valid No Objection Certificate was issued to the petitioner and the permission, granted to the petitioner by the GMDA, on the basis of such inva lid No Objection Certificate, cannot be said to be a valid permission in the eye s of law. Therefore, the construction of the building by the petitioner, on the strength of the permission granted by the GMDA, which itself is invalid in law, was, undoubtedly, unauthorized. 16. rit in this writ petition. The writ petition, therefore, stands dismissed. Because of what have been discussed and pointed out above, we find no me 17. No cost.