Judgment · High Court · 2012

The army authority i.e., the Station Commander, Tezpur Military Station, respondent No.4 in the writ petition, had entered appearance by filing a caveat. Subsequently, a counter affidavit was filled by the said respondent No .4. In the counter affidavit, the respondent No.4 has stated that concerned with the construction of high rise buildings within the periphery of 500 meters of t he military stations at Narangi and Tezpur, the army authorities had taken up th e matter with the Govt. of Assam in the civil military liaison meeting held on 1 7-05-2010. Pursuant thereto, the Govt. of Assam decided to make necessary amendm ents in the municipal laws to ensure that no high rise buildings (more than 48 f eet) would be permitted to be constructed within 500 meters from the perimeter o f the military station without obtaining NOC from the local military authorities . It was further decided by the Govt. of Assam to put on hold fresh applications seeking permission to construct high rise buildings within the above specified a reas.

The petitioner has filed rejoinder affidavit to the counter file d by the respondent No.4. The petitioner has contended that the decision taken i n the civil military liaison meeting held on 17-05-2010 cannot take the place of a proper gazette notification to put restriction either on the use of land or o n the construction of any high rise building near a military establishment. The petitioner has asserted that unless there is compliance with the necessary forma lities as envisaged in the Works of Defence Act, 1903, (briefly (cid:28)the Defence Act (cid:29) hereafter), no order preventing any ongoing construction in accordance with th e lawful permission granted can be made. The petitioner has stated that in the a bsence of any gazette notification under the Defence Act imposing any restrictio n on the use of land or construction of high rise building near the Tezpur Milit ary Station, there was no reason for the petitioner to seek NOC from the army au thorities. The petitioner has stated that the decision taken in the meeting date d 17-05-2010 was only for future permission and the impugned direction could not have been issued without having a proper notification under the Defence Act. St ating that he started the construction immediately after obtaining the permissio n, the petitioner has complained that the various correspondences between the ar my authorities, district administration and the Development Authority were all b ehind his back. He has stated that the outer structure of the building in questi on situated at Mission Chariali, a prominent business place on the side of NH 37 , has almost been completed and that neither the army authorities nor the State Government have complied with the relevant provisions of the Defence Act before asking the petitioner to stop the construction. Stating that the State Governmen t and the army authorities have not taken any step under the Defence Act till da te, the petitioner has pointed out an instance of at least one factory building s tanding at a height of more than 60ft. on the other side of the National Highway opposite to the petitioner’s construction. The petitioner has also stated that he did not receive any notice from the appellate authority in the appeal filed b y the respondent No.4.

The respondent No.4 thereafter filed an additional counter affid avit reiterating the allegation of violation of the status-quo order of this Cou rt dated 25-02-2011 by the petitioner, enclosing various correspondences in this regard.

The petitioner has filed his reply affidavit to the said additio nal counter affidavit filed by the respondent No.4. The petitioner has reite rated his stand that after the status quo order dated 25-02-2011, he did not car ry out any sort of construction works. He has stated that the bamboo and re nted iron railings / structures which were erected for the purpose of the constr uction works on the exterior part of the building were removed as he was incurri ng hiring charges against the iron railings / structures and having regard to th e status quo order, he decided to remove the same which took 3-4 days time. The petitioner has also stated that the real reason behind the objection raised by t he army authorities against the construction of his building after completion of almost 100% of the super structure is the altercation which took place between some army officials including one Major D.Madame and the staff of his restaurant (cid:28)K.F. Bar cum Restaurant (cid:29) Mr.

ffidavit. The Union of India (respondent No.3) has not filed any counter a The Respondent No.2 i.e. the Under Secretary to the Government o 20. f Assam in the Urban Development Department filed an affidavit on 22-11-2011. In the said affidavit, the respondent No.2 has stated that on receipt of an appeal from the respondent No.4, the Station Commander, Tezpur Military Station, regar ding construction of a high rise multistoried building within the periphery of th e Tezpur Military Station, the appellate authority decided to temporarily stay t he permission granted by the Development Authority and that necessary instructio ns were given to the Development Authority in this regard for staying the constr uction of the building. The respondent No.2 has further stated that the petition er’s representation dated 17-01-2011 was received by the Government after the st ay order was passed by the appellate authority. Stating that the relevant record s have been called for by the appellate authority from the Development Authority , the said respondent has stated that the petitioner has been impleaded in the a ppeal and he would be given opportunity to submit his grievances at the time of hearing. In paragraph-11 of the said counter affidavit, the said respondent No.2 has stated that the Deputy Commissioner, Sonitpur was requested vide the depart mental letter bearing No.45/2011/50 dtd.15-03-2011 to inform the Urban Developme nt Department, Government of Assam as to whether any public notice has been issu ed under sub-section (2) of Section 3 of the Defence Act but no reply has been r eceived. Referring to Section 43 of the Assam Town and Country Planning Act, 195 9 (briefly (cid:29)the state Act (cid:29) hereafter), the respondent No.2 has stated that the s aid section provides for the appellate authority to hear (cid:28)all appeals (cid:29) arising o ut of the provisions of the said Act and that the army authority has preferred a n appeal before the appellate authority, which has stayed the permission granted till the disposal of the appeal. The Development Authority has communicated the said decision of the appellate authority to the petitioner.

The respondent No.5 i.e. the Development Authority has also file d its affidavit. The respondent No.5 has stated that the petitioner was granted permission to construct a G+7 commercial building by the order dated 25-09-2008 as the plans and drawings submitted by the petitioner were found to be in accord ance with the Uniform Zoning Regulations, 2000 as well as the provisions of the state Act. The respondent No.5 has further stated that the Deputy Commissioner, Sonitpur had communicated to the said respondent the decision taken in the civil military liaison meeting held on 17-05-2010 and, accordingly, the said responde nt immediately put on hold all fresh applications seeking permission to construc t high rise buildings (more than 48 feet) in the periphery of the Tezpur Military Station till the proposed amendments in the Uniform Zoning Regulations were mad e. The said respondent further stated that having received the State Govt. lette r dated 29-12-2010 communicating its decision to stay the permission granted, th e respondent No.2 issued the letter dated 05-01-2011 to the petitioner asking hi m to stop the construction of the building immediately.

I have heard Mr.B.C.Das, learned Senior Counsel assisted by Mr. D.N.Bhattacharjya, learned counsel for the petitioner, Mr. S.Bhattacharjee, lear ned counsel for the respondent Nos.3 and 4, Mr. J.Handique, learned Govt. Advoca te, Assam for the respondent Nos. 1 and 2 and Mr. A.Ganguly, learned counsel for the respondent No.5.

Mr. Das, the learned Senior Counsel submits that the petitioner had carried out the construction of the building in question only after obtainin g the due permission from the Development Authority. Referring to the order of p ermission dated 25-09-2008, he submits that it is clear that such permission was granted for a G+7 multistoried building and that the permission application alo ngwith the map submitted in this regard were approved. Referring to the affidavi t of the respondent No.5, the learned Senior Counsel submits that the said permi ssion was granted by the Development Authority as the plan and drawings submitte d by the petitioner were found to be in accordance with the Uniform Zoning Regul ations, 2000 as well as the provisions of the state Act. He further submits that there was no violation of any of the permission conditions or deviation from th e approved plan and drawings or any violation of the above regulations and provi sions of the state Act to warrant stopping of the lawful construction.

Resisting the submissions advanced on behalf of the petitioner, Mr. S.Bhattacharjee, ld. Counsel for the respondent No.4 refers to section 43 of the state Act and submits that the language of the said section particularly th e expression (cid:28)all appeals arising out of the provisions of this Act (cid:29) makes it ab undantly clear that an appeal can be filed relating to any matter under the Act. According to him, it is evident that the petitioner has an alternative remedy b y way of an appeal under the provisions of the aforesaid Act. He submits that be cause of the availability of the appellate provision, which the petitioner has n ot availed, the writ petition is not maintainable. On the other hand, the learne d Counsel submits that the appeal filed by the respondent No.4 is maintainable a nd as a matter of fact, the petitioner had appeared before the appellate authori ty hearing the appeal of the respondent No.4.

Mr. Handique, learned Government Advocate, Assam in his submissi on refers to paragraphs 12 and 14 of the counter affidavit filed by the responde nt No.2. He has also produced the relevant record relating to the appellate proc eedings of the appeal filed by the respondent No.4.

Mr. A.Ganguli, learned Counsel for the respondent No.5 in his su bmission refers to the letter dated 09-09-2010 issued by the Chairman of the Dev elopment Authority and addressed to the Station Commander, Tezpur Military Stati on and submits that the construction permission was granted as the petitioner fu lfilled all the necessary conditions. He further submits that no complaints were received by the Development Authority regarding violation of any of the buildin g conditions or approved drawings by the petitioner. According to him, on the da te of permission i.e. on 25-09-2008, there was no notification u/s 3 of the Defe nce Act. He, however, submits that since there is a provision for appeal, the pe titioner should move the appellate authority instead of invoking the writ jurisd iction of this Court.

In his reply, Mr. Das the learned Senior Counsel for the petitio ner, while reiterating his earlier submissions, further submits that the right o f appeal is a creature of the statute. According to him, it is section 42 of the state Act and not section 43 thereof which is the substantive provision dealing with appeal, that the right of appeal as provided under section 42 is circumscr ibed by the contours of chapters VI and VII of the state Act and that section 42 is a part of chapter VII. Mr. Das contends that the words (cid:28)all appeals (cid:29) appeari ng in section 43 has to be understood in the context of section 42. Therefore, t here is no appellate provision in so far the petitioner is concerned. Alluding t o the submission of Mr. Bhattacharjee that the petitioner could have filed an ap peal before the appellate authority against the stop construction order of the D evelopment Authority, Mr. Das submits that firstly, there is no appellate provis ion, and secondly, even assuming that there is an appellate provision, consideri ng the fact that the stop construction order was passed by the Development Autho rity following the stay order passed by the appellate authority, the question of filing any appeal before the very same appellate authority does not arise. Rega rding the objection raised by Mr. Bhattacharjee to the reference made to the alt ercation between some of the army officers and the staff of the petitioner’s res taurant as those have not been pleaded in the writ petition, Mr. Das contends th at the same have been expressly stated in the rejoinder affidavit filed by the p etitioner to the additional counter affidavit filed by the respondent No.4 and, therefore, the respondent No.4 had full prior knowledge about the above facts wh ich have been relied upon by the petitioner in support of his challenge to the i mpugned order. In this regard, Mr. Das presses into service a decision of the Ap ex Court reported in AIR 1965 SC 1578 ( Sri-la-Sri Subramania Desika Gnanasamban da Pandarasannidi Vs. State of Madras).

d passion have received the due and anxious consideration of the Court. The rival submissions made at the bar with considerable force an Since Mr. Bhattacharjee, the learned Counsel for the respondent 29. No.4 has argued and laid great stress on the availability of an alternative reme dy in the form of an appeal under the state Act, which appears to be his princip al argument, let us therefore examine the relevant provisions of the state Act.

The Assam Town and Country Planning Act, 1959 (earlier referred to as (cid:28)the state Act (cid:29)) has been enacted to provide for the development of the to wns and country sides of the state of Assam. As per the statement of objects and reasons, the said Act has been enacted to deal with the problems of haphazard g rowth of the urban areas and to provide for the development of those areas on so und planning principles with the general object of securing proper sanitary cond itions, to conserve and promote the public health, safety and general welfare of the people living therein.

Section 2(1) of the state Act defines the word (cid:28)authority (cid:29), whic h means the local or regional authority appointed by the state Government for th e purpose of administering the said Act and means the municipal board in the cas e of municipal areas constituted under the Assam Municipal Act, 1956 or the deve lopment authority constituted under section 8 of the state Act. Section 2(3) of the state Act defines (cid:28)betterment fee (cid:29), which means the fee prescribed in respec t of an increase in the value of land resulting from the execution of a developm ent scheme. (cid:28)Development (cid:29) and (cid:28)Scheme (cid:29) are defined separately in sub-sections (7 ) and (16) respectively of Section 2 of the state Act. (cid:28)Development (cid:29) has been de fined to mean the carrying out of building, engineering, mining or other operati ons in, on or over the land or making of any material change in the use of any b uildings or of land subject to the exceptions mentioned in the proviso thereto. (cid:28)Scheme (cid:29) means a development scheme and includes a plan together with the descri ptive matter if any relating to such a scheme.

Section 8A of the state Act provides for constitution of the dev elopment authority with jurisdiction over such area as may be specified. The dev elopment authority consists of various members, including a Chairman to be appoi nted by the state Government. Section 8D of the state Act lays down the function s and powers of the authority, which is basically to promote and secure the deve lopment of the area according to the master plan. Section 9 of the state Act pro vides for preparation of the master plan, which is required to be approved by th e State Government. After approval, such master plan is required to be published giving wide and sufficient publicity, inviting public opinion and objections. A fter consideration of all objections, suggestions and representations etc., the state Government shall have the plan finally prepared. Section 11 deals with the contents of the master plan which may include a general land use plan for resid ential, commercial, industrial, recreational and public and semi-public purposes , Zoning plan etc.

Chapter VI of the state Act deals with acquisition of land which may be required for execution of a scheme. Chapter VII deals with payment of co mpensation and for levy of betterment fee. Under section 37, which falls under c hapter VII, any person whose property is injuriously affected in value by the ma king of a scheme, is entitled to obtain compensation in respect thereof from the authority. As per section 41, every property which has increased in value due t o its inclusion within an area under a plan or a scheme or due to the execution of such scheme shall be charged with a betterment fee.

That brings us to section 42 of the state Act. As per the said s ection, any person aggrieved by the decision of the authority with respect to ma tters of compensation and betterment fee, may appeal to the appellate authority within thirty days of the award. As per sub-section (2) of section 42, if the ow ner of any property objects to the quantum of betterment fee as determined by th e authority, he shall also state the amount which he thinks to be appropriate. T hereafter, he may within 30 days from the date of the determination of his objec tion or appeal becoming final, by written notice require the authority to acquir e the property together with any building or other works that may exist thereon. The authority shall thereupon acquire the property. It may be noted that sectio n 42 is a part of chapter-VII, which as indicated above, deals with compensation and betterment fee.

Chapter-VIII of the state Act deals with the appointment of appe llate authority, duties of the appellate authority, procedure to be adopted by t he appellate authority etc. and consist of sections 42 to 47. As per section 43, the state Government shall appoint an appellate authority to hear all appeals a rising out of the provisions of the state Act, whose decision shall be final. He must have the qualification of a District Judge or that of a member of the Assa m Board of Revenue. As per section 44, the appellate authority is to hear and de cide appeals against the orders of the authority as well as to decide and hear a ppeals in respect of such other matters and exercise such other powers as may be entrusted to and conferred upon it by the state Government in accordance with t he provisions of the state Act. All such appeals are required to be filed within a month from the date of the order appealed against, with the appellate authori ty having the power to condone the delay, if any, in filing such appeal for suff icient reasons.

From a brief survey of the state Act, it is seen that the same h as been enacted to provide for a planned development of the towns and country si des of the state. Whether the state Act has achieved its avowed objective after 50 years of its existence is however a debatable question which we may not ventu re to address in the present proceeding. The Tezpur Development Authority (earli er referred to as (cid:28)the Development Authority (cid:29)) is a creature of the state Act. A s noticed above, the preparation and publication of the master plan and zoning r egulations as provided in chapter III of the state Act entails a transparent pro cedure where anyone in the locality may submit his opinion, suggestions or objec tions. The State Government has the power to review and modify the master plan a nd zoning regulations from time to time in tune with the changing requirements. If a construction is not proceeding according to the sanctioned plan or is in vi olation of any provision of the state Act, the authority (in the present case th e Development Authority) has the power to stop the construction till the necessa ry corrections are made. The authority also has the power to demolish a construc tion in addition to any prosecution that may be instituted under the state Act, if the same is carried out in contravention of the master plan or development sc heme or without the permission, approval or sanction as required or in contraven tion of any condition subject to which such permission, approval or sanction had been granted.

Under the state Act, the state Government is vested with the pow er to acquire land on the representation of the authority if such acquisition is considered necessary. In the case of acquisition of land and computation and pa yment of compensation therefor, the provisions of the Land Acquisition Act, 1894 shall be applicable. As already noticed, chapter VII of the state Act provides for payment of compensation and levy of betterment fee. Any person whose propert y is injuriously affected in value by the making of a scheme is entitled to obta in compensation in respect thereof from the authority. On the other hand, every property which has increased in value due to its inclusion within an area under a plan or a scheme or due to the execution of such schemes shall be charged with a betterment fee. A person who is aggrieved by the decision of the authority wi th respect to matters of compensation and betterment fee, may appeal to the appe llate authority within thirty days of the award. The state Act also provides for the appointment of an appellate 39. authority having the qualification as noticed above, who shall be appointed by t he State Government to hear (cid:28)all appeals arising out of the provisions of this A ct (cid:29). The appellate authority shall hear and decide appeals against the orders of the authority, whose decision shall be final. It has also the power to hear and decide appeals in respect of such other matters and exercise such other powers as may be entrusted to and conferred upon it by the state Government in accordan ce with the provisions of the state Act.

A careful reading of the two sections i.e., sections 42 and 43 o f the state Act would reveal that there is no contradiction between the two prov isions. The language of section 42 is clear, unambiguous and specific; it says t hat any person who is aggrieved by a decision of the authority with respect to m atters of compensation and betterment fee, may appeal before the appellate autho rity against such an award. On the other hand, section 43 provides that the appe llate authority is (cid:28)to hear all appeals arising out of the provisions of this Ac t (cid:29). The expression (cid:28)to hear all appeals arising out of the provisions of this Ac t (cid:29) would include within its fold any appeal filed against any order passed by th e authority under the provisions of the state Act. It would include an appeal fi led against an award of compensation or against a decision of the authority levy ing a betterment fee. This is further clarified by the language of section 44 wh ich says that the appellate authority shall hear and decide appeals against the orders of the authority.

The argument of Mr. Das, the learned Senior Counsel for the peti tioner, that the provision of appeal under the state Act should be confined to m atters of compensation and betterment fee as provided in section 42, which finds place in chapter VII dealing with payment of compensation and levy of bettermen t fee, therefore the right of appeal under the state Act is circumscribed by cha pter VII and that the expression (cid:28)to hear all appeals arising out of the provisi ons of this Act (cid:29) has to be understood in the context of section 42 of the state Act, gives a very narrow / restricted interpretation to the appellate provision. If the said submission / interpretation is accepted, it will lead to a situatio n where an appeal can be filed only against an award of compensation or against the levy of a betterment fee, leaving out persons who may be aggrieved by variou s orders passed or steps taken under the provisions of the state Act without any statutory remedy.

In so far the first question is concerned, the answer can be fou nd in the language of sections 43 and 44 of the state Act itself. As already not iced, the appellate authority is to hear all appeals arising out of the provisio ns of the state Act and it has the duty and power to hear and decide any appeal against an order of the authority. Building permission granted or a NOC issued b y the authority for construction of a building would be an order of the authorit y within the meaning of section 44(1) (a) of the state Act. As such, an appeal f iled against such a building permission or NOC would be an appeal arising out of the provisions of the state Act. Any person who is aggrieved by such a building permission or NOC would be entitled to file an appeal against it. Evidently, th e respondent No.4 is aggrieved by the building permission granted to the petitio ner for the reasons already indicated.

Considering the nature, scope and ambit of the appellate powers, which involves an adjudicatory process, the high qualification required of the appellate authority, which has to be that a District Judge or of a member of the Assam Board of Revenue (which includes a person qualified to be appointed as a Judge of a High Court) and the finality attached to the orders of the appellate authority, I am of the view that the appellate proceedings have all the trapping s of a quasi-judicial proceeding. Therefore, I have no hesitation to hold that t he proceedings before the appellate authority are quasi-judicial in nature and t he appellate authority exercises quasi-judicial powers.

Having said so, let us now have a look at the records of the app ellate proceeding produced by the learned Government Advocate. The records so pr oduced contain two files. The first file is numbered File No. UDD(T) 284/2010. T his file contains 12 pages of note sheet and 66 pages, including the appeal date d 07-10-2010 filed by the respondent No.4. The second file is numbered File No. UDD(T) 45/2011. It contains 10 pages of note sheet and 73 pages, including copie s of the writ petition and the affidavit-in-opposition filed by the respondent N o.2. It also contains 5 loose papers, including a document marked as ’X’. The sa id document (marked as ’X’) is a notification bearing No.UDD(T) 190/2008/94 date d 14-06-2010 issued by the Principal Secretary to the Government of Assam, Urban Development Department. The relevant portion of the said notification is quoted hereunder:- (cid:28)GOVERNMENT OF ASSAM URBAN DEVELOPMENT (T) DEPARTMENT DISPUR ::: GUWAHATI-6 ORDERS BY THE GOVERNOR N O T I F I C A T I O N Dated, Dispur the 14th June, 2010 No. UDD(T)190/2008/94 : In continuation of this Department’s Notification No. UD D(T) 41/2006/Pt.II/4 dtd. 26-08-2009 and in exercise of Powers Conferred under s ection 43(1) (2) of Chapter VIII of the Assam Town & Country Planning Act, 1959 (as amended), the Governor of Assam is pleased to appoint J.Chakraborty, IAS, Me mber of the Assam Board of Revenue & Additional Secretary to the Govt. of Assam, Urban Development Department, Assam, as the Appellate Authority to hear all app eals arising out of the provisions of the said Act for the State of Assam with i mmediate effect till Shri M.U.Ahmed, IAS, Secretary to the Govt. of Assam, Urban Development Department, Assam resumes his duty after availing the Earned Leave. of Assam Sd/- (Shri Saraswati Prasad, IAS) Principal Secretary to the Govt. Urban Development Department Memo No. UDD(T) 190/2008/94-A, Dated Dispur the 14th June, 2010 (cid:29)

From a perusal of the said notification dated 14-06-2010, it is seen that Shri M.U.Ahmed, IAS, Secretary to the Government of Assam, Urban Devel opment Department is the appellate authority under the state Act and during the period of his earned leave, Shri J.Chakraborty, IAS, Member, Assam Board of Reve nue and Additional Secretary to the Government of Assam, Urban Development Depar tment was appointed as the appellate authority.

The records indicate that no separate file for the appeal has be en maintained by the appellate authority. The appeal has been processed through the departmental hierarchy and there is also no separate set up of the appellate authority. The appeal has been dealt with by the department officials like any other departmental matter. It is seen that the appeal of the respondent No.4 dat ed 07-10-2010 was received in the department on 25-10-2010. Now let us have a lo ok at the contents of the said appeal, which is reproduced hereunder :- (cid:28)Tel : 2241 Station Headquarters 363/1/Q (PC) The Honourable Appellate Authority, The Secretary Urban Development Department Govt. of Assam, Dispur Guwahati-6 Tezpur PIN- 901213 07 Oct 2010 CONSTRUCTION OF HIGH RISE MULTISTOREY BUILDING IN THE VICNITY OF KF RESTAURANT, MISSION CHARIALI, TEZPUR, DISTT SONITPUR NEAR THE PERIPHERY OF MILITARY STATION, TEZPUR BY SH. ANURAG AGGARWAL

References :- (a) 4 Jun 2010. Deputy Secretary Revenue and D.M.Deptt. letter No. RLA 216/2010/12 dt. 2 Office of Deputy Commissioner, Sonitpur, Tezpur (DCP Cell) letter No. SP (b) D/Misc./203/2009/796 dt 19 Jul 2010 addressed to the Chairman, Tezpur Developmen t Authority, Sonitpur (copy enclosed for ready reference). (c) y enclosed for ready reference). Station Headquarters, Tezpur letter No. 363/1/Q (PC) dt 24 Aug 2010 (Cop (d) Tezpur Development Authority letter No. TDA/BD/MAZGAON/2013/11/494 dt 09 Sep 2010 (copy enclosed for ready reference) MOST RESPECTFULLY SHOWETH:-

Vide letter under reference cited at Para 1(b) above, the Office of the Deputy Commissioner, Sonitpur, Tezpur had written to the Chairman, Tezpur Develo pment Authority informing that high ride buildings cannot be allowed to be const ructed near the periphery of Military Station, Tezpur in violation of Indian wor ks of Defence Act, 1903 and Classification of Defence Installation and Establish ment, Gazette of India, Extra Ordinary (SO 1589) dt 30 Jun 2008. It was specific ally mentioned that (cid:28)No high rise building (more than 48 feet) is permitted to b e constructed within 500 meters from the periphery of Military Station without o btaining NOC from local Military authorities (cid:29). Hence, Tezpur Development Authori ty was requested by the Office of Deputy Commissioner, Tezpur to look into the m atter and not to allow construction of high rise buildings within 500 meters fro m periphery of Military Station, Tezpur. That the Station Commander, Tezpur, accordingly, brought the matter of c 3. onstruction of a high rise building adjacent to KF Restaurant at Mission Charial i, Tezpur to the notice of Tezpur Development Authority (by Sh. Anurag Aggarwal) vide their letter No. 363/1/Q (PC) dt 24 Aug 2010. Presently, the said building has reached almost double the permissible height and further construction activ ity is going on at full swing. Such a high rise building undoubtedly would be a security threat to defence installations located in the vicinity. The army autho rities had therefore, expressed their concern for the ongoing construction activ ity.

That the Chairman, Tezpur Development Authority vide their communication dt. 09 Sep 2010 had brought out that permission for construction of the said bu ilding was granted as per Uniform Zoning Regulation, 2000 of Town and Country Pl anning Department, a govt. of Assam vide Memo No. TDA/B6/Mazgaon/941/08 dt 25 Se p 2008 and that the construction permission would be reviewed only after the nec essary amendments in the said regulations are carried out in accordance with the decision taken in civil military liaison conference held on 17 May 2010.

That it is respectfully submitted that by the time the amendments in the State Govt. regulations take effect, the construction work of the said high ris e building would be over, rendering the present correspondence on the subject in fructuous.

That it is further submitted that State Govt. regulations / instructions may not supplant the provisions of the Central Act and statutory orders publish ed in Govt. of India, Gazette (SO 1589). It is therefore, requested that amendme nts in the Uniform Zoning Regulations, 2000 may be incorporated at the earliest in view of the Central legislations and decision taken in the civil military lia ison conference held on 17th May 2010.

In the premises aforesaid, it is most respectfully prayed that during th e intervening period, in the interest of justice and security of defence install ations, the Honourable Appellate Authority may be pleased to pass interim orders for staying further construction activities of the said building. Sd/- illegible (PN Chaudhari) Brig Stn Cdr, Tezpur Military Station (cid:29)

As could be seen from the above, the said appeal is basically in the form of a petition / representation addressed to the appellate authority. T hough a grievance is made against the construction of the petitioner, the order granting the building permission / NOC dated 25-09-2008 is not impugned in the a ppeal. Even the party likely to be affected by the outcome of the appeal i.e., t he petitioner, has not been made a party to the appeal. Infact, there is no part y in the appeal, neither any appellant nor any respondent, though the appeal inv olves an adjudicatory process and serious consequences may visit the affected pa rty depending upon the outcome of the appeal. The request made in the said petit ion is to make amendments in the Uniform Zoning Regulations, 2000 to incorporate the decision taken in the civil military liason meeting held on 17-05-2010 and during the intervening period, to stay further construction activities of the sa id building.

As indicated above, the said appeal was received in the departme nt on 25-10-2010. The first note is dated 06-11-2010, addressed to the Under Sec retary. The said note makes an interesting reading. In the middle part of the no te, it is stated that no high rise building (more than 48 feet) is permitted to be constructed within 500 meters from the periphery of the military station with out obtaining NOC from the local military authorities. It also states that the s aid building has reached almost double the permissible height and that further c onstruction activity is going on at full swing. It is not understood as to how a nd on what basis the author of the said note had made the said comment in his no te. What was the basis, legal or otherwise, to say that no high rise building (m ore than 48 feet) is permitted to be constructed within 500 meters from the peri phery of a military station without obtaining NOC from the local military author ities? What was the basis on which it was commented that the said building has r eached almost double the permissible height and that construction is going on at full swing ? Did he have any report before him or was it on the basis of his pe rsonal knowledge? Interestingly, there is no mention about the building permissi on dated 25-09-2008 granted by the Development Authority. He had simply reproduc ed the averments made in the appeal and thereby sought to give an impression tha t the building is being constructed in an unauthorized manner without any permis sion.

The note of the Under Secretary dated 08-11-2010 addressed to th e Principal Secretary makes still more interesting reading. He writes that an am endment of the Uniform Zoning Regulations, 2000 will have to be done to check co nstruction of high rise buildings near the periphery of the military station. He further observes that interim order, if considered necessary, may be issued ban ning further construction till the amendment is made. There is no mention either of the building permission granted or of the appellate authority. Infact, the n ote was put up before the Principal Secretary to issue the interim order banning further construction.

Luckily at this stage, the Principal Secretary comes into the pi cture. He puts up a margin note dated 08-11-2010 saying that the decision is to be taken by the appellate authority. Thereafter, there is a note dated 20-11-201 0 to wait for the joining of the Secretary, the appellate authority. On 25-11-20 10, there is a note that Shri M.Ahmed, Secretary was likely to join on 4th Decem ber and that till then they should wait. The note of 26-11-2010 says that the ap peal be put up immediately on resumption of duties by the appellate authority.

All this while, the officials of the Urban Development Departmen t dealing with the appeal were completely silent about the notification dated 14 -06-2010 as referred to above whereby Shri J.Chakraborty, IAS, member of the Ass am Board of Revenue was appointed as the appellate authority during the period o f absence of Shri M.U.Ahmed. Instead of placing the appeal before the appellate authority then holding office, the departmental officials dealing with the appea l for some unexplained reason decided to wait for Shri M.U.Ahmed.

On 27-12-2010, Shri M.U. Ahmed as the appellate authority passes the following order :- (cid:28)Appeal admitted. TDA’s action is stayed until further order. Please issue notic e to all concerned informing the interim decision and for hearing, fixing the da te on 03-02-2010 (sic) at 3PM in the appellate authority’s office chamber (cid:28).

The above order reflects a most mechanical approach and non-appl ication of mind on the part of the appellate authority. He did not examine wheth er the appeal was in form, against which order the appeal was filed, whether the a