High Court
Case Details
WP(C) 6477/2006 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN Heard Mr. HRA Choudhury, learned Senior Counsel for the petition er and Mr. SK Ghosh, learned counsel for the respondent Nos. 4, 5 & 8. Also hear d Mr. BJ Ghosh, learned Govt. Advocate, Assam. 02. brothers i.e. petitioner and respondent No. 9 and other family members. This unfortunate litigation arises out of a dispute between two Case of the petitioner is that he along with his four brothers a 03. nd predecessor-in-interest of respondent Nos. 4 to 8 are co-owners of a plot of land measuring 12 kathas, situated at Ward No. 9 of Hailakandi town. Separate ho uses have been constructed by them on the said land. As the land has not been of ficially partitioned, on the basis of family arrangement, they have allotted the mselves different plots within the land in question. Respondent No. 9 is residin g in the house within the said land under Holding No. 25/22.
Legal Reasoning
Respondent No. 5, who is one of the near relations of the petiti 04. oner, wanted to construct one RCC building over his portion of land, but since t he land stood in the name of respondent No. 9, application was made by the said respondent before the Hailakandi Municipal Board (Board) for construction permis sion. By letter dated 07.04.2006, Executive Officer of the Board granted permiss ion to respondent No. 9 to construct RCC building by maintaining the existing al ignment. Respondent No. 9 was asked to submit completion report within one month from the date of completion. According to the petitioner, while making the cons truction, respondent No. 5 encroached upon the earmarked portion of the land bel onging to the petitioner. He, therefore, made a complaint before the Executive O fficer of the Board, who in turn asked respondent No. 9 to stop the construction forthwith and to show cause why action should not be taken for violation of the building permission norms. The private respondents, however, did not stop the c onstruction, rather they proceeded with the construction in right earnest. At th at stage, petitioner represented before the Deputy Commissioner, Hailakandi requ esting the said authority to intervene in the matter to stop the illegal constru ction. The Deputy Commissioner thereafter referred the matter to the Board. Exec utive Officer of the Board wrote to the respondent Nos. 5 and 9 vide letter date d 15.05.2006 stating that on spot verification of the land, it was found that th e construction carried out was beyond the permission granted. The said responden ts were asked to stop further construction and to report compliance. 05. At this stage, it may be pointed out that petitioner had institu ted a suit being TS No. 22/2006 in the Court of Civil Judge (Jr. Division) No. 2 , Hailakandi against the alleged illegal construction of the respondents. In the proceeding of the civil suit, a local inspection was carried out on orders of t he Court and as per local inspection report of Advocate Commissioner dated 13.06 .2006, it was found that the original common family path stretching from the lan d in question to the PWD road was four feet in breadth, but because of the const ruction carried out, the path has narrowed down to about 1‰ feet. Moreover, beca use of construction of a RCC pillar, the roof of the petitioner’s house was also twisted. It was reported that the total length of encroachment would be about 2 0 feet. 06. Petitioner filed application seeking leave of the Civil Court fo r withdrawal of the suit. Order was passed on 26.06.2006 allowing the prayer to withdraw the suit. Prior to that, petitioner had moved the Executive Officer of the Board requesting the said authority to exercise power under sections 176 and 177 of the Assam Municipal Act, 1956 (Act). Similar prayer was made before the Deputy Commissioner, Hailakandi. As, there was no response, after withdrawal of the suit, petitioner moved the Government of Assam in the Urban Development Depa rtment for an enquiry into the matter and to take action against the officials o f the Municipal Board for their failure to act in accordance with the provisions of the Act. The aforesaid prayer of the petitioner also failed to evoke any res ponse. 07. Aggrieved, petitioner has filed the present writ petition seekin g a direction to the respondents to exercise power under the relevant provisions of the Act and to demolish the illegal construction made by respondent Nos. 5 t o 9. 08. Respondent Nos. 4, 5 & 8 have filed a common affidavit. They hav e stated that they had applied for permission for construction of RCC building b efore the Board and on permission being granted, construction was carried out as per the terms and conditions of the permission. They have denied that there has been any violation of the terms of the permission granted. The said respondents have also denied that they had encroached upon the petitioner’s land. Question of encroachment does not arise, as no partition of the land in question had take n place between the co-pattadars. They had contested the suit filed by the petit ioner and, thereafter, the petitioner filed application for withdrawal of the su it. Since, the suit has been withdrawn, no reliance can be placed on the inspect ion report, which was obtained in the proceedings of the suit. They have stated that there is enough free space in the common passage for the petitioner to move in and out of the house and to have access to the tank, kitchen, bath room and to the PWD road. 09. Mr. Choudhury, learned Senior Counsel appearing for the petition er submits that at the time of filing the writ petition, petitioner was 75 years old and now he is more than 80 years of age. Though attempts were made for reso lution of the dispute, the same was not successful. He submits that because of t he illegal action of the respondents, he has suffered immense hardship as ingres s and eggress to his house has been obstructed to a large extent, thus affecting his free movement. Though the Municipal authorities were aware of such anomalie s, they failed to act in accordance with the provisions of the Act, taking advan tage of which the said respondents have completed their illegal construction. Ev en the State Government had failed to come to his rescue by issuing necessary di rections to the Board to act in accordance with law. He, therefore, seeks approp riate intervention by this Court so that passage to his house is cleared of encr oachment. 10. Submissions made by Mr. Choudhury have been opposed by Mr. Ghosh , learned counsel appearing for the private respondents. He submits that the all egations made by the petitioner are wholly incorrect, as his clients have not en croached upon any land belonging to the petitioner. There is sufficient space in the common approach road which is used by all the parties. Petitioner has raise d disputed questions relating to apportionment of land between the parties which may not be gone into in a proceeding under Article 226 of the Constitution of I ndia. He also submits that though petitioner had filed application for withdrawa l of the suit, a perusal of the order dated 26.06.2006 of the Civil Court would show that the suit was disposed of on contest. He, therefore, submits that the w rit petition filed by the petitioner is not maintainable and should be dismissed . Mr. Ghosh, learned State Counsel fairly submits that having rega 11. rd to the nature of the dispute, the Municipal Board or the State Government may be directed to take necessary steps in accordance with law. 12. Submissions made have been considered. 13. Before proceeding further, relevant provisions of the Act may be briefly noticed. Section 176 of the Act provides for imposition of penalty for construction of building without sanction or in contravention of sanction. Befor e starting any construction, due permission from the local Municipal Authority i s required to be obtained. Any construction without such permission or beyond su ch permission would be unauthorized and would be liable to demolition in additio n to fine under Section 176. Section 177 deals with the power of the Board in ca se of disobedience. It provides amongst other things that in case a building is constructed in contravention of the terms of any sanction granted, the Board by giving notice to the building owner may require the building to be altered or de molished within a period of 30 days from the date of receipt of such notice. As per the second proviso, instead of alteration or demolition of the building, the Board may compound such deviation by way of realization of fine as may be deeme d reasonable. In the event of any default by the Board in performing any duty ca st on it, the State Government may intervene in exercise of power under section 297 of the Act and direct the Board to perform the duty within such time as may be granted. 14. Grievance of the petitioner has been noticed above. According to him, construction of RCC building by respondent Nos. 5 to 9 has severely restri cted, access to his house causing great inconvenience to him, more particularly because of his advanced age. Board authorities are aware of this position but fa iled to take action under section 176 and 177 of the Act. Even the State Governm ent failed to act under section 297. In such circumstances and having regard to the nature of the gri 15. evance expressed by the petitioner, Court is of the view that the Board should c arry out an on spot verification of the complaint made by the petitioner and on such verification, if it is found that there is contravention of the terms of pe rmission granted thereby blocking the passage to the petitioner’s house, necessa ry steps under section 176 and 177 of the Act should be taken. Ordered according ly. The above exercise shall be carried out and completed within a p 16. eriod of one (1) month from the date of receipt of a certified copy of this orde r. 17. Needless to say that no such decision shall be taken without giv ing opportunity of hearing to both the sides. Once the exercise is completed, th e Board shall submit report to the Commissioner & Secretary to the Govt. of Assa m, Urban Development Department under section 297 of the Act.
Decision
18. owever, there shall be no order as to costs. Writ petition is, accordingly, disposed of in the above terms. H