High Court
Case Details
WP(C) 6336/2012 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA The petitioner is aggrieved by Annexure-9 letter dated 12.11.202 1 communicated to it by the Chief Executive Officer, GMDA levying the penalty to the tune of Rs. 1,00,89,140/-. The penalty is stated to have been levied as per the By-Laws and the GMDA Act, 1985. Such penalty has been levied on the ground of starting the construction work in respect of the particular project before th e formal NOC was issued. The impugned letter was preceded by show cause notice d ated 18.8.2012 (Annexure-6) under Section 87 of the GMDA Act. By the said notice , the petitioner was asked to submit its reply in respect of the alleged underta king or carrying out development of building and land within the Guwahati Metrop olitan area without the requisite approval of the GMDA. It was alleged that the petitioner had violated Section 24 and 25 of the GMDA Act, 1985. In response to the said notice, the petitioner by its Annexure-7 letter dated 24.8.2012 denied the allegation. In the letter it was stated that the entire project was recommended by the Common Technical Committee (CTC) on 28 .11.2011 and that only the formal clearance of the Ministry of Environment & For est was to be furnished. It will be pertinent to mention here that although no f ormal order of such clearance was not issued, but as per the minutes of the meet ing of the particular committee, the environmental clearance was accorded to the petitioner. When everything was going on smoothly, the aforesaid Annexure-9 penalty order was issued on 12.11.2011 alleging unauthorized construction on the part of the petitioner.
Legal Reasoning
While Mr. A.D. Choudhury, learned counsel for the petitioner sub mits that there was no unauthorized construction but only some test piling works had been done, Ms. M. Hazarika, learned Standing Counsel, GMDA submits that und er no circumstances, the petitioner ought to have carried out any kind of constr uction without the formal approval of the GMDA. Mr. Choudhury, learned counsel f or the petitioner submits that even if the test piling works are stated to be un authorized construction then also penalty can be levied only under Section 34 of the GMDA Act. On the other hand, Ms. Hazarika, learned Standing Counsel, GMDA s ubmits that such penalty can be levied as per the provision of the Building By-l aws for Guwahati Metropolitan area. The records pertaining to the case was called for and Ms. A. Aji tseria, learned counsel assisting Ms. M. Hazarika, learned Standing Counsel, GMD A has produced the said records. I have very carefully considered the submission s made by the learned counsel for the parties and have also gone through the ent ire materials on record including the records produced by Ms. A. Ajitseria, lear ned counsel for the GMDA. On perusal of the said records, it appears that the petitioner h as fulfilled all the requirement to start the project. As the materials have dis closed, there was requirement of NOC from the Airport Authority and a particular clearance for fire passage. The petitioner could meet both the requirements as will be evident from the note sheet in the file. The note sheet also have reveal ed that even the environment clearance from the Ministry of Environment & Forest has been obtained which was preceded by clearance of the same as per the discus sions in the meeting held under the Ministry of Environment & Forest. Although i nitially the petitioner could not produce the formal order, but he had furnished the clearance accorded in the said meeting held by the Ministry of Environment & Forest. Noticing all the above, the matter was processed by the GMDA at different levels. By note dated 4.8.2011, the authority found everything in orde r except the formal order of clearance from the Ministry of Environment & Forest and NOC from the Airport Authority. It was recorded that the said two clearance would be required before the construction work could start. The petitioner was allowed to deposit the required fees as was n oted in the note sheet dated 6.8.2011. The amount is Rs. 12,84,861/- as recorded in the note dated 9.8.2011. The petitioner had submitted minutes of the 110th m eeting of the Environmental Committee recommending environmental clearance. The petitioner had also submitted the required NOC from the Airport Authority and th e documents relating to clearance for fire service. He had also submitted consen t letter issued by the Pollution Control Board. After the aforesaid submission of the requisite clearance, the f ile recorded approval of the project as was recommended by the CTC. It was also recorded that since the petitioner had submitted all the required documents, it should be issued provisional NOC subject to furnishing of environmental clearanc e. When the matter was processed on that basis a question was raised as to wheth er a provisional NOC could be issued by the GMDA. When the matter rested thus fo r months together, a note was put up in August, 2012 about the purported unauth orized construction being carried out by the petitioner. Thereafter the aforesai d show cause notice was issued, to which, the petitioner also submitted its repl y. Finally by note dated 9.12.2012 the proposal was made to impose the penalty o n the petitioner as follows: (cid:28)Total built up area proposed (Zone-A = 52919 M2 = 55,773 mtr. Zone-B = 2854 M2 Penalty @ Rs. 10/=X2 times for apartments X 6 times = 66,92, 760/- Escalation @ 50% = 33,46,380 -------------------------- Total penalty 1,00,39,140/- Submitted for perusal and oblige (cid:29) On perusal of the file in which the aforesaid proposal and the p enalty was mooted, it is not discernible as to under what provision the penalty was calculated and imposed on the petitioner. Although it is submitted by the le arned Standing Counsel, GMDA that the penalty has been imposed as per the provis ion of By-laws of the Guwahati Metropolitan area, 2006, but in the note sheet it self there is no indication about the applicability of the said provision. Mr. C houdhury, learned counsel for the petitioner has drawn my attention to Section 3 4 of the GMDA Act, which reads as follows: (cid:28)34. Penalty for violation.- The authority shall have power to i mpose fine not exceeding five hundred rupees on any person, firm or corporation who violates, disobeys, refuses to comply with, or who resist the enforcement of any of the provisions of this Act. Continuation of the violation shall constitu te a separate offence for which a fine of fifty rupees per day may be imposed fo r the days after the first conviction. An appeal shall lie to the appellate auth ority constituted under this Act. (cid:29) Ms. M. Hazarika, learned Standing Counsel, GMDA, on the other ha nd, has drawn my attention to Appendix-III of the revised Building By-laws for G uwahati Metropolitan area, 2006. On perusal of the provisions in the said append ix what is found is that the same is relating to the rates made applicable for b uilding built prior to 1998, built after 1998 upto 2002 and rates for deviation of the Building By-laws other than non-compoundable items. It is in this context , Ms. Hazarika, learned Standing Counsel, GMDA refers to Clause-3 indicating pen alty of 50% escalation charge etc. On a bare perusal of the said provision, nothing is discernible that the penalty that has been imposed in the instant case could be imposed in r espect of the kind of construction the petitioner has allegedly carried out. Mor eover, as noted above, the notes in the file do not refer to any provision eithe r of the GMDA Act or of the By-laws. However, the above quoted calculations have been made so as to impose the aforesaid penalty of Rs. 1,00,39,140/-. Before le vying such penalty the petitioner was also not apprised of the amount and the vi olation for which the penalty was to be levied indicating the calculation thereo f. As has been noted above, on perusal of the file produced by GMDA what is seen is that everything was found to be in order till May, 2012 and the NOC was directed to be issued to the petitioner. However, a question was arose as to whether the same should be provisional or final. Even now the GMDA is not opposed to issuance of the NOC to the petitioner as he has submitted all the req uired documents including the NOC of the environmental clearance. During the cou rse of hearing Ms. M. Hazarika, learned Standing Counsel, GMDA has submitted tha t the petitioner should make an application to the authority for settlement of t he matter.
Decision
In view of the above, I am inclined to accept the writ petition and accordingly the impugned order dated 12.11.2012 (Annexure-9) stands set asid e so far as the same relates to imposition of penalty. Now the respondents shall consider issuance of the NOC to the petitioner as the file has revealed that is suance of NOC to the petitioner is at the final stage as he has submitted all th e required documents. As regards imposition of penalty for the alleged piling wo rk, the GMDA will be at liberty to deal with the matter in accordance with law, but consistently with the observations made above. They will keep in mind that b ut for the delay on their part to deal with the matter properly, the NOC would h ave been issued and this controversy also would not have arisen. As noted above, in fact, everything was finalized as the petitioner could comply with all the r equirements except the formal NOC of environmental clearance, but he had submitt ed the minutes of the environmental committee meeting recommending the environme ntal clearance. It was in such circumstances, the proposal was also accepted for issuance of provisional NOC. Another important aspect of the matter is, when the GMDA has alr eady decided to issue the NOC, it will be only a case of ex-post facto approval of what has been done by the petitioner, even if the same, in technical terms, i s said to be irregular. The writ petition is allowed with the above direction and observ ation. There shall be no order as to costs.