This High Court · 2009

(ii) Based on the above letter, the present writ petition was taken up suo mo to by this Court and by order, dated 23.03.2006, this Court issued notices to al l the respondents and directed, in particular, respondent No.4, namely, Director , Town and Country Planning, Assam, to submit a comprehensive report as regard t he allegations made in the writ petition. By order, dated 23.03.2006, aforementi oned, respondent No.4 was further directed to issue, in turn, directions to all concerned to stop all illegal constructions in and around Nagaon Town. (iii) Following the directions given by this Court by order, dated 23.03.2006, aforementioned, an order was passed, on 11.04.2006, by respondent No.3, namely, Chairman, Nagaon Development Authority, against respondent No.8, namely, Dr. Mr inal Kumar Sharma, specifying violations committed by him of the approved drawin g and directing him to demolish, within a period of seven days from the date of receipt of the order, the unauthorized portions of the building constructed by h im in violation of the provisions of the Act. The order, dated 11.04.2006 (annex ure-B to the affidavit, dated 09.05.2006), filed by the respondent No.4, specifi es the following deviations from the approved drawing : \ 1. Front Setback: Front Setback approved in the submitted Drawing is 5(Five) Mtrs. But you constru cted the building keeping front setback of 3.30 Mtrs. Thereby you have deviated the approved plan in regards of front set back by 1.70 Mtrs. 2. Side Setback: On the South side setback maintained 0.30m/0.90m/1.00 Mtr.lO.80m. The approved s etback on this side is 1 Meter. Hence you have deviated from approved plan in re gard of side setback on the south side by Maximum of 0.70 M. Projection on the s outh is unauthorized. 3. Rear Setback: Approved Rear setback is 3 Mtr. You have maintained 0›Om/1.25m/1.15m. Thereby yo u have deviated from the approved Plan in regards Rear setback by maximum of 3.0 0 Mtr.

4. Stair case: Positions of Stair cases as approved have been changed. One of the Stair case co nstructed partly over the rear setback. One Toilet block also constructed over t he rear set back by encroaching the required rear set back. S.Use of Rooms: The building has been approved for shops. But you have constructed the building without constructing partition walls as approved. In your submitted Plan no use has been mentioned for the Halls/Rooms. 6. Basement: Basement has been constructed illegally as there is no provision in the approved plan. Organised parking in the basement and position of ramp for entry/exit has not been shown in the revised plan.\ The operative portion of the order reads as follows- \Therefore, Dr. Mrinal Kumar Sharma is directed to demolish the above mentioned un-authorised portion of the Building constructed in violation of the Assam Town and Country Planning Act and not as per approved drawing within 7 (seven) Days of the receipt of this order failing which, Nagaon Development Authority will be free to proceed with the demolition of the unauthorized portion of the Building on its own without giving you any further intimation and expenses thereof shall be recovered from Dr. Mrinal Kumar Sharma.\ (iv). Reacting to the order, dated 11.04.2006, passed by the respondent No.3, Dr. Mrinal Kumar Sharma submitted, on 12.04.2006, a representation to the Commis sioner and Secretary, Town and Country Planning, Assam, stating to the effect, i nter alia, that in the constructions raised by him, there were only some minor c hanges from what had been approved by the authorities concerned and, hence, dire ctions may be issued to Nagaon Development Authority to regularize the deviation s, which had taken place in the constructions raised by him, and until such regu larization was done, the direction given by the notice, dated 11.04.2006, be sta yed. The said representation was made over by letter, dated 02.04.2006, issued b y Commissioner and Secretary, Town and Country Planning, Assam, to the responden t No.3, namely, Chairman, Nagaon Development Authority, with request to look int o the matter and dispose of the representation as per rules. Shortly, thereafter, i.e., on 17.04.2006, a detailed report of the Direc (v). tor, Town and Country Planning, Assam, was laid before to this Court stating the rein that Dr. Sharma had started construction of his building without any intima tion to the Nagaon Development Authority as required by the relevant Bye-laws an d, upon a notice issued, in this regard, to Dr. Sharma, Dr. Sharma had submitted his reply, but the reply being not satisfactory, Nagaon Development Authority h ad issued a formal order directing Dr. Sharma to remove the deviated portions of the constructed building. This report is reproduced hereinbelow: \Sri Sarma has started the construction of the said building without intimation to the Nagaon Development Authority as required as per building bye›law and viol ated the construction work. Nagaon development Authority issued 151 Notice vide No. NDAIES/Complain/Part/05-06/5/716 dtd.21 .12.2005( copy enclosed in Annexure- II) and 2na Notice vide No. NDAlEs/Complain/Partl05- 06/1 dtd.24.06.2005.Sri Sar ma has submitted a reply against notices on dated 28.11.2005 and Mis S.B.B Assoc iates has submitted a clarification regarding printing error in permission drawi ng(copy enclosed in Annexure -III & IV). Thereafter Nagaon Development Authority issued a formal Order for removal of the deviated portion of the R.C.C Shops Building constructed by Sri Sarma vide No. NDAlES/Complain/Partl05-06/12/812, dated 11.4.2006 (copy enclosed in Annexure -V ) within 7(seven) days of the receipt of the said order.\ By order, dated 17.04.2006, respondent No.3, namely, Nagaon Development (vi). Authority, too rejected the said representation, dated 12.04.2006, filed by Dr. Mrinal Kumar Sharma (respondent No.8) seeking, inter alia, regularization of the unauthorized portions of the constructions raised by him. The relevant portion of this order read as follows: \ & &..you are hereby given another 10 (T en) days time, w. e. f the date menti Memo No. NDAlES/Complain/Partl05 -06/12/ 812, dated 11/04/2006 to demolish the unauthorized portion of the building const ructed by you in violation of Assam Town and Country Planning Act and Constructi on made not as per approved Drawing, detail of which has been given in the said Order Order, dated 11/04/2006 as mentioned above.\ (vii). From the order, dated 17.04.2006, which was passed by respondent No.3, it becomes clear that according to Nagaon Development Authority, the constructions , raised by Dr. Mrinal Kumar Sharma, suffer from major deviation and he was, the refore, directed to demolish the unauthorized portions of his constructions with in the time as specified above. (viii). Having visited Nagaon Town and, particularly, the office of Nagaon Devel opment Authority, and having inspected the records relating to illegal construct ions, respondent No.4, namely, Director of Town and Country Planning, Assam, fil ed, on 09.05.2006, in this writ petition, an affidavit giving, in detail, the st ate of affairs in and around Nagaon Town and also with regard to the alleged ill egal constructions raised by Dr. Sharma. (ix). On 05.06.2006, respondent No.6, namely, Nagaon Municipal Board, filed, i n this writ petition, an affidavit averring, inter alia, that the power to accor d sanction/permission for construction/erection/material alteration, etc, within Nagaon Municipal area, does not remain vested, in Nagaon Municipal Board, with effect from the date of constitution of the Nagaon Development Authority and, he nce, it is the Nagaon Development Authority, which is the competent authority to issue sanction/permission for construction/material alteration, etc, in Nagaon Town. (x). On the very next day, i.e., on 06.06.2006, an affidavit was filed by res pondent No.3, namely, Chairman, Nagaon Development Authority, denying that it ha d become a common practice, in and around Nagaon Town, to regularize the illegal constructions. In this affidavit, it was also averred by respondent No.3 that w ith regard to the constructions undertaken by respondent No.8, namely, Dr. Sharm a, respondent No.3 had allowed ten day’s time to carry out the demolition. This affidavit was followed by yet another affidavit filed by the respondent No.3, na mely, Chairman, Nagaon Development Authority. The latter affidavit was filed by the respondent No.3. in terms of the order, dated 18.07.2006, passed in this wri t petition, submitting a status report, wherein it was indicated that though Dr. Sharma had instituted a Title Suit restraining the authorities concerned from f orcing Dr. Sharma demolish the alleged unauthorized constructions, the said suit stood disposed of, by order, dated 17.07.2006, but demolition had not been carr ied out by the respondent No.3 due to the fact that the matter was pending in th is Court. The relevant averments, made in the affidavit, read as under: \However it is pertinent to mention herein that as regard the Title Suit being N o.66/06 filed by Shri Mrinal Kumar Sarma, has been disposed of by Civil Judge Jr . Division Nagaon vide order dated 17.07.2006. Thus there been no legal bar as s uch, the deponent prays for a direction from his Hon’ble Court for a direction t o allow the authorities to take further actions in accordance with law.\ (xi). On perusal of the affidavit, dated 18.08.2006, this Court passed an orde r making it clear that since the suit had been disposed of, there was no impedim ent, on the part of the authorities concerned, to proceed further. (xii). By order, dated 22.08.2006, this Court directed the respondent No.3 to s ubmit further status report. The report, so directed, was submitted to this Cour t and taken up for consideration on 21.09.2006. This status report reflected the state of affairs until 18.09.2008. With this report, a sketch-map of the unauth orized constructions made by Dr. Sharma was also submitted showing therein compo undable as well as non-compoundable portions of the unauthorized constructions. (xiii). In terms of the directions given by this Court, respondent No.8, namely, Dr. Sharma has filed an affidavit on 07.12.2006, wherein he has admitted the de viations from the approved plan. This apart, in terms of the directions, issued by this Court, respondent No.3 has also filed an affidavit enclosing therein the sketch-map showing the compoundable and non-compoundable portions of the constr uctions raised by respondent No.8.

2. We have heard Mr. SS Dey, learned counsel, for the petitioner, who has a ppeared as amicus curaie. We have also heard Mr. BJ Talukdar, learned Govt. Advo cate, for the respondent Nos.1, 2 and 4, Mr. N. Dutta, learned Senior counsel, f or the respondent Nos.3 and 5, Mr. SC Khound, learned counsel, for the responden t No.6, and Mr. SK Barkataki, learned counsel, for the respondent No.8

3. When the matter come up, on 04.12.2008, this Court, having noticed that no completion certificate had been issued in respect of the constructions raised by respondent No.8, passed an order directing the respondents concerned to take appropriate steps to ensure that Dr. Sharma’s building is not used until the ti me the building is finally certified, in accordance with law, to be fit for use.

4. Having heard the learned counsel for the parties concerned and also upon perusal of the materials on record as well as the provisions contained in the Z oning Regulations, we notice that Section 9 of the Zoning Regulations, whi ch embodies provisions for penalty, contains, with regard the regularization or composition of deviation and/or violations of the Zoning Regulations, two distin ctly different parts. Section 9.2.1 of the Zoning Regulations makes it clear th at some of the items of deviations and/or violations are non-compoundable. Thes e items are use of building, addition of extra floor, parking norms, and project ion/encroachment of public land. Section 9.2.1 of the Zoning Regulations makes, at the same time, specific provisions for compoundable items, which are as unde r: Compoundable item: 1. Coverage 2. Z. FAR 3. Set back 4. Open space - 5. Total height of building - - - Maximum 10% reduction Maximum of 15% Maximum of 10% up to 2’-6’ -

1.5%

5. It may be noted that those items, which are non-compoundable, cannot, un der any circumstances, be compounded; whereas the compoundable items may be comp ounded. The composition of deviation or violation shall not, however, be done a s a matter of course. Any construction, which is in violation of the approved p lan and/or in violation of the relevant provisions of the Zoning Regulations, wh ich may adversely affect the civic amenities, in a given area, shall not be, ord inarily, permitted to survive. The provisions, made with regard to the compound ing, are not aimed at permitting people to ignore the approved plan and raise co nstructions according to their own whims and choice. Apart from the fact that the items to be compounded must be compoundable within the ambit of the Zoning R egulations, the deviation, sought to be compounded, shall also be such, which, a ccording to the authorities concerned, are not deliberate, mala fide and would n ot, if allowed to be compounded, adversely affect the civic life of the people i n a given township, in general, and in a given area, in particular.

6. In the light of what have been discussed above, it becomes clear that th e deviations, which the respondent No. 8 has caused, while raising the construct ions, in question, which are non-compoundable, cannot be compounded by any of th e official respondents. Even in respect of the compoundable items, the responde nts/ authorities concerned must be satisfied that such composition are justified in the facts and attending circumstances of the present case. This apart, as f ar as other unauthorized constructions in Nagaon town are concerned, the same sh all be dealt with by the State respondents, particularly, respondent Nos. 3 and 4, in accordance with law and with utmost alertness.

7. Considering, therefore, the matter in its entirety and in the interest o f justice, it is hereby directed that the respondents/authorities concerned shal l not compound the deviations, which are included in the constructions raised by the respondent No. 8, unless the same are permissible and warranted in the fact s and attending circumstances of the present case. The respondents/authorities concerned are hereby further directed to ensure that no unauthorized constructio n takes place within the limit of their territorial jurisdiction and that any co nstruction, which has been made unauthorisedly, is not allowed to survive except in accordance with law. The actions, which may be taken by the respondent Nos. 3 and 4, shall be communicated, in writing, at the end of every three months fr om to-day, to the respondent Nos.4 and 7, namely, Director, Town and Country Pla nning Department, Dispur, Assam, and Director, Municipal Administration Departme nt, Govt. of Assam, respectively, who shall keep close watch on the functioning of the respondent Nos. 3 and 4.

8. Considering the fact that illegal and unauthorized constructions have be en raised under the very nose of the respondent Nos. 3 and 4, this Court is of t he view that some measures are required to be adopted in order to ensure that su ch illegal constructions do not take place and/or are not casually or, with ulte rior motives, regularized. With this end in view, respondent Nos. 3 and 4 are h ereby directed to ascertain, within a period of six months from to-day, all such constructions, falling under the Nagaon Development Authority, which suffer fro m deviation and/or violation of Zoning Regulations and shall deal with the same in accordance with law. The respondent Nos. 3 and 4 shall ensure that no unautho rized or illegal construction takes place within the limits of their territorial jurisdiction. It is also directed that whenever the respondents/authorities con cerned regularize or compound any item of deviation or violation, the reasons f or allowing such regularization and/or composition shall be assigned, in writing , and further the fact that such a composition and/or regularization of deviatio n or violation of the Zoning Regulations has taken place and/or has been allowed shall be published, in a local newspaper, at the cost of the person, who seeks and obtains permission for such composition and/or regularization.

9. nd disposed of. With the above observations and directions, this writ petition shall sta

10. No order as to costs.