Gauhati High Court
Priyanka Estate International (P.) ... vs State Of Assam And Ors. on 28 July, 2006
Equivalent citations: (2007)1GLR473
Author: Chief Justice
Bench: Chief Justice
JUDGMENT B.P. Katakey, J.
1. These writ petitions are arising out of the construction of the multistoried RCC building in S.C. Goswami Road, Panbazar, Guwahati, challenging the notice issued by the Guwahati Municipal Corporation ('GMC') to stop construction and also the order issued by the Guwahati Metropolitan Development Authority ('GMDA') for demolition of multistoried building in question constructed by the petitioners in W.P.(C) No. 5018 of 2002 and petitioner Nos. 1 and 2 in W.P.(C) No. 2747 of 2006. The petitioners in W.P.(C) No. 5146 of 2002 raised the question of illegal and unauthorized construction of the said building and prayed for demolition of the same. Since the matter in issue in the writ petitions are common being relating to the construction of the said multistoried building, all the writ petitions are taken up for hearing analogously as agreed to by the learned Counsel for the parties.
(A) Background facts:
2. The facts in brief in respect of the writ petitions are narrated below:
(I) W.P.(C) No. 5018 of 2002By this writ petition the petitioner M/s. Priyanka Estate International (P.) Ltd. and its directors have challenged the order dated 31.7.2002 issued by the Commissioner, GMC informing the petitioners that the plans submitted by them for construction of the building pursuant to their application dated 27.6.2002 is insufficient for not filing the affidavit for structural design as per format of the building bye-laws, no objection certificate from the State Fire Department and declaration in affidavit to maintain the F.A.R. within 487 as well as the even dated notice issued by the Associate Plan GMC to the petitioners to stop construction of the RCC building in terms of the direction issued by the Commissioner GMC and asking them to produce the no objection certificate and approved plan within three days from the date of receipt of the notice.(II) W.P.(C) No. 2747 of 2006
The petitioner-builder M/s. Priyanka Estate International (P.) Ltd. along with one director of the said company and an occupier of the Flat No. 5B of the multistoried building in question, by this writ petition have challenged the order dated 30.5.2006 issued by the Chief Executive Officer, GMDA under Section 88 of the Gauhati Metroplitan Development Authority Act, 1985 ('the 1985 Act') for removal of the building constructed by the petitioner No. 1 unauthorizedly, on the ground of violation of the building bye-laws to the effect that (a) FAR of the building is 490 which exceeds allowable FAR 300, (b) the maximum floor height 93 ft. which exceeds allowable height of 76 ft. in that road, (c) setback of 15 ft. side to 20 ft. rear has not been maintained as the building has been used for commercial purpose with residential at top floors, (d) allowable maximum balcony projection of 1/4th of the building length in any side as allowable has not been maintained, (e) non-availability of two staircases and lift on opposite directions as per building plan and (f) construction of the building despite the order to stop construction.(III) W.P.(C) No. 5146 of 2002
This writ petition has been filed by Sanatan Dharmasabha and three residents of Panbazar locality of Guwahati city challenging the action on the part of the authorities in granting the permission for construction of the multistoried building in question and also for demolition of the illegal and forceful construction of the said multistoried building constructed by M/s. Priyanka Estate International (P.) Ltd. (petitioner No. 1 in the other two writ petitions), on the ground that such building permission were given in violation of the building bye-laws of the GMC as well as GMDA and also unauthorized construction of part of the building without any permission from any authority.
3. Mrs. Madhu Singhania, (petitioner No. 3 in W.P.(C) No. 5018 of 2002) Director of the M/s. Priyanka Estate International Pvt. Ltd. filed an application on 26.11.1999 before the GMC seeking permission for construction of basement, ground floor, Mezzanine and 1st, 2nd, 3rd and 4th floors as well as part of 5th floor over a plot of land covered by Dag No. 102, Patta No. 338, Village Sahar, Guwahati (3rd part), Mouza-Guwahati, P/O-Panbazar in the district of Kamrup, Assam by the side of S.C Goswami road, Panbazar.
4. The Commissioner, GMC on 3.2.2000 pursuant to the said application granted permission to construct the commercial RCC building having basement floor, ground floor, mezzanine floor and 1st to 5th floor (part) with the floor area of 7112 sq. ft. for basement floor (car park); 2096 sq. ft. mezzanine floor; 5690, sq. ft ground floor; 7283 sq. ft. each from 1st to 4th floor and 3817 sq. ft. 5th floor with condition that (i) the builder along with M/s. Creations, the engineering firm, will be responsible for any kind of structural failure of the building, (ii) no objection certificate from the State Fire Service organization is to be obtained, (iii) road side drain along with the road is to be constructed at the cost of the builder, (iv) before installation of deep tube well, no objection certificate from Central Ground Water Board is to be obtained, (v) chutes are to be provided inside the building for garbage disposal, (vi) at least two nos. of dustbins are to be placed near the plot at the cost of the builder. Such building permission was granted in accordance with the plan submitted by the applicant. M/s. Priyanka Estate International (P.) Ltd. thereafter on 8.2.2000 filed another application before the GMC authority seeking permission for construction of the remaining part of the 5th floor as well as 6th, 7th, and 8th floors. The Commissioner GMC thereafter, informed the said writ petitioner-builder vide communication dated 27.3.2000 about rejection of the permission for construction on the ground that the plan submitted by it is insufficient as the (i) set back provided is inadequate (ii) the proposed height of the building is 93 ft. though the maximum allowable height of the building is 76 ft. (iii) the margin on both sides and rear is less than the required norms (iv) FAR (Floor Area Ratio) exceeds the allowable FAR of 300 and the structural certificate has not been submitted.
5. The writ petitioners-builder, being aggrieved by the order of rejection of permission filed an appeal before the appeal committee of the GMC under Section 438 of the Gauhati Municipal Corporation Act, 1971 (in short 1971 Act) which was registered as Appeal Case No. 21 of 2000. The said appellate authority vide order dated 5.5.2000 held that the appellant therein be accorded permission as sought for and also set aside the order passed by the Commissioner, GMC rejecting the permission. It is evident from the said judgment that the width of the existing road by which side the building is to be constructed is 38 ft. Since the Commissioner GMC in spite of the appellate authority's order did not issue any permission for construction of the said upper floors, an application was filed before the Minister in-charge Gauhati Development Department on 28.8.2001 seeking a direction to the Commissioner, GMC to implement the order of the standing appellate committee and issue necessary permission so that upper floors of the building as proposed can be constructed. Similarly, an application was also filed before the Commissioner, GMC on 26.9.2001 for implementation of the order passed by the standing appeal committee.
6. The Commissioner, GMC on 15.10.2001 referred the issue regarding granting of permission for construction to the State Government. The Deputy Secretary, Government of Assam on 28.11.2001 informed the Commissioner, GMC to grant permission in terms of the order passed by the standing appellate authority. The Commissioner, GMC, thereafter, vide order dated 29.5.2002 informed the petitioner-company that its prayer for construction of the commercial building up to 8th floor has been considered by the, Administrator-cum-Minister, Guwahati Development Department, Government of Assam with the condition that the no objection certificate from State Fire Department is to be obtained to submit affidavit regarding the structural certificate not to exceed the FAR beyond 487 and subject to the payment of penal charge to the Corporation amounting to Rs. 10 lakh.
7. On 30.7.2002 a complaint was filed by the residents of that locality before the Hon'ble Chief Minister, who was the minister in-charge of GMDA, raising complaint about illegal high rise building constructed by the petitioner-builders. The Commissioner, GMC on 31.7.2002 informed the petitioner that his application dated 27.6.2002 which was filed pursuant to the Commissioner's order dated 29.5.2002 could not be accepted and the plan submitted by it for construction is insufficient for absence of no objection certificate from State Fire Department, proper affidavit for structural design as per format of the building bye-laws and declaration in affidavit to maintain the FAR within 487. On the same date the Associate Planner of GMC by another order, as directed by the Commissioner asked the petitioner to stop construction, as, such construction has been going on without any permission. These two orders of the GMC authority dated 31.7.2002 have been challenged in W.P.(C)No. 5018 of 2002.
8. The Chief Executive Officer, GMDA on 18.2.2002 issued a notice to Pramod Singhania (petitioner No. 2 in W.P.(C) No. 2747 of 2006) directing him to remove unauthorised construction of the RCC building within three days from the date of receipt of the notice, informing him that failing which necessary action as per provision of the 1985 Act will be initiated without any further intimation, as the writ petitioner did not comply with the notice dated 2.2.2001 and the order of demolition dated 5.9.2001. The petitioner No. 2 of the said writ petition informed the GMD Authority on the same day, i.e., on 18.2.2002 that necessary permission was obtained for construction of the building from the GMC on 3.2.2000 and also intimating that they did not receive any letter as mentioned in the said notice. The Chief Executive Officer, GMDA thereafter on 21.2.2002 asked the petitioner No. 2 to furnish all copies of the approved drawings and building permission in support his letter dated 18.2.2002 within two days from the date of receipt of the said letter, in reply to which the petitioner No. 2 again informed the GMD Authority that no objection certificates and the permission for construction was granted on 3.2.2000 by the GMC and under took to submit the approved drawings as copies of such drawings are with the architect, who was out of station at that point of time. The petitioner thereafter on 2.4.2002 sent a. photocopy of the drawings approved by the GMC authority for construction of the building at Panbazar.
9. The Chief Executive Officer, GMDA on 3.5.2002 issued a notice to the petitioner No. 2 directing to remove/demolish the unauthorized construction of the 6th and 7th floor as well as the cantilever as the same were constructed in violation of the 1985 Act as well as the building bye-laws and zoning regulation. The writ petitioner on receipt of the said notice informed Chief Executive Officer, GMDA on 6.5.2002 that they obtained the permission for construction from GMC and for construction of the 6th to 8th floor they obtained the judgment of the standing appellate committee and, therefore, there was no unauthorized construction. It was further informed that there is no violation of approved drawing regarding cantilever. The Town Planner, GMDA, thereafter on 4.10.2002 informed the petitioner No. 2 that a routine inspection of the multistoried building will be conducted by the authority and, therefore, asked him to submit copies of the building permission and approved drawing on the basis of which the construction was made and informed him that in the event of failure to co-operate with the authority as well as to submit the said building permission and approved drawing within the stipulated time and if continued to make construction of the building deviating from the building bye-laws and permission issued to him, the authority will initiate action like demolition, etc., as per the 1985 Act without any further notice.
10. After about 2 1/2 years the GMDA issued another notice under Section 87 of the 1985 Act on 6.5.2005 directing the petitioner No. 2 to stop construction forthwith and to show cause within 10 days as to why unapproved construction should not be demolished. Thereafter the order dated 30.5.2006 was issued by the Chief Executive officer, GMDA directing the petitioners to demolish the unauthorized building constructed in violation of the 1985 Act as well as the building bye-laws and the zoning regulation within five days of the receipt of the order on the ground which has already been reflected herein above. Meanwhile, the Director of Fire Services, Assam on 2.2.2006 issued the certificate to the effect that it has no objection in the occupation/ utilisation of the said commercial/residential building, from where it appears that the building up to 8th floor has been constructed by the petitioner. The order dated 30.5.2006 issued by the Chief Executive Officer, GMDA is under challenge in W.P.(C) No. 2747 of 2006.
(B) Submission of the learned Counsel for the parties
11. We have heard Mr. N. Dutta, senior counsel for the petitioners in W.P.(C) No. 5018 of 2002 as well as in W.P.(C) No. 2747 of 2006, Mr. N.C.' Das, learned senior counsel for the petitioners in W.P.(C) No. 5146 of 2002, Mr. K.N. Choudhury, learned Additional Advocate General, Assam on behalf of the State respondents, Dr. N.K. Singh, learned standing counsel for the GMDA as well as Mr. S. Samaria learned standing counsel appearing on behalf of the GMC authority.
12. Mr. Dutta, the learned senior counsel for the writ petitioners in W.P.(C) Nos. 5018/2002 and 2747/2006 challenging the communications dated 31.7.2002 issued by the Associate Planner, GMC directing the petitioners to stop construction of the RCC building as well as the order dated 30.5.2006 issued by the Chief Executive Officer, GMDA under Section 88 of the 1985 Act directing the petitioners to demolish the unauthorised construction has submitted that the GMC authority cannot ask the petitioners to stop construction of the building as the building permission which was refused by the Commissioner, GMC vide order dated 27.3.2000 was set aside by the standing appellate committee, GMC in an appeal filed by the petitioners under Section 438 of 1971 Act vide judgment and order dated 5.5.2000 and the Commissioner having not making any reference within two months from the date of such judgment and order is bound to comply with the direction issued by such appellate authority. It has further been submitted by the learned senior counsel that as the Commissioner did not comply with such order in spite of repeated request made by the petitioners they had to approach the Government of Assam in Guwahati-Development Department and accordingly the Deputy Secretary of the said department vide communication dated 28.11.2001 asked the Commissioner, GMC to issue the building permission pursuant to the order passed by the standing appellate committee and ultimately vide order dated 29.5.2002, the Commissioner, GMC in fact granted the permission for construction up to 8th floor with the conditions stipulated in the said order which includes the condition of no further FAR beyond 487 and also payment of penal charge to the Corporation amounting to Rs. 10 lakh. Mr. Dutta, learned senior counsel has also submitted that the penal charge which was levied by the said order has immediately been paid to the Corporation and other conditions stipulated in the said order have also been complied with and, therefore, there cannot be any question of stopping construction of said building.
13. It has further been submitted that after the order passed by the standing appellate committee the Commissioner is required to issue the formal permission only and even if such permission is not issued, the petitioners by virtue of the order passed by the such appellate authority is entitled to make construction and such construction of the petitioners cannot be termed as unauthorized construction. Referring to the provision of Section 425 of 1971 Act, the learned senior counsel has submitted that since the GMC was superseded at the relevant point of time the administrator exercises the power of the corporation and in the instant case it is evident from the communication dated 29.5.2002 issued by the Commissioner, GMC that the Administrator, GMC who happens to be the Minister of Gauhati Development Department allowed the building permission with conditions stipulated therein which is also evident from the Clause 5 that the petitioner was asked to submit completion certificate and obtain occupancy certificate from GMC. The learned senior counsel, therefore, submits that the construction of the building up to FAR 487 cannot be termed as unauthorized, i.e., the construction of the remaining portion of the 5th floor as well as entire 6th, 7th, 8th floors of the building was constructed in terms of the permission given by the GMC.
14. The learned senior counsel referring to the interim order dated 12.8.2002 passed in W.P.(C) No. 5018 of 2002 has submitted that there was a positive interim direction issued by the learned Single Judge directing the Municipal Authority not to take any step to pull down the building and also suspending the operation of the communication dated 31.7.2002 issued by the Associate Planner directing the petitioner to stop construction and, therefore, the petitioners have not committed any illegality in making construction up to 8th floor. It has further been submitted by the learned senior counsel that even subsequent interim order dated 20.9.2002 by which the petitioners were directed not to make any construction over the land in question and to stop all the construction activities, was in force for ten days only, which expired on 29.9.2002 and thereafter there was no order extending such order.
15. Mr. Dutta, learned senior counsel challenging the order dated 30.5.2006 issued by the Chief Executive Officer, GMDA under Section 88 of the 1985 Act has submitted that the GMDA authority cannot issue any order of demolition of the building because there was no unauthorized construction at all, the permission for construction having been granted by the GMC first by order dated 3.2.2000 up to part of the 5th floor which includes basement and mezzanine floor and thereafter by virtue of the order passed by the standing appellate committee dated 5.5.2000 as well as the order of the Commissioner, GMC dated 29.5.2002 for remaining part of the 5th floor up to 8th floor. Mr. Dutta has further submitted that it is apparent from the GMC's own record that the petitioners did not make any construction beyond 487 FAR which was granted by the GMC vide order dated 29.5.2002.
16. Referring to Section 88 of the 1985 Act, the learned senior counsel has further submitted that Section 88 stipulates giving a reasonable opportunity to show cause to the owner/occupier, manager or the person concerned, as to why an order for demolition under Section 88 should not be issued. But in the instant case, according to the learned senior counsel, no such notice was issued before issuance of the order dated 30.5.2006, thereby violating the statutory provision contained in Section 88 of the said Act. Referring to the order dated 30.5.2006 issued by the GMDA which has a mentioned about show cause notices dated 2.2.2001, 5.9.2001, 18.2.2002 and 4.10.2002, the learned senior counsel has submitted that it is evident from the communication dated 18.2.2002 sent by the petitioner in reply to the GMDA's order dated 18.2.2002 to remove construction for alleged failure to comply with the notices dated 2.2.2001 and 5.9.2001 that the petitioners have specifically stated that they did not receive any notices dated 2.2.2001 and 5.9.2001. Regarding the other notices dates 18.2.2002 as well as 4.10.2002 as mentioned in the order of demolition dated 30.5.2006, the learned senior counsel has submitted that the said notices are not the show cause notices as required to be issued under Section 88 of the 1985 Act before issuance of notice of demolition and in fact communication dated 18.2.2002 is a direction to remove construction and 4.10.2002 was a notice regarding the inspection of the multistoried building. The learned senior counsel further submits that even assuming that the notices dated 2.2.2001 and 5.2.2001 were served on the petitioners then also it is evident from the said notices that the petitioners were not informed as to how they have violated the approved building plan and also as to how the construction is unauthorized. That apart the grounds on which the order under Section 88 of the 1985 Act has been passed by the GMDA on 30.5.2006 have never been informed by the said authority to the petitioner nor in any of the earlier notices, though under the provision of the 1985 Act, the GMDA before issuing any order under Section 88 is statutorily bound to inform the petitioners about the deviations and the nature of unauthorized construction so as to give him the opportunity to make representation effectively and completely against such notices. According to the learned senior counsel the requirement of issuing notice and filing of show cause is not an empty formality and same must be an effective opportunity, which can be treated to be effective if the petitioners are given the details of deviations and unauthorized construction. But in the instant case, according to the learned Counsel senior counsel, the same having not been given, the order of demolition dated 30.5.2006 issued by the GMDA under Section 88 of the 1985 Act is illegal being violative of the basic principles of natural justice as stipulated in under Section 88 itself.
17. The learned senior counsel has further submitted that it cannot be said that no prejudice was caused to the petitioners for non-issuance of such show cause notice as the petitioners in the reply dated 6.5.2002 against the order dated 3.5.2002 issued by the GMC authority to remove unauthorized construction of 6th and 7th floor has given an explanation regarding such alleged unauthorized construction of cantilever and had that opportunity been given the petitioners, they could have explained the entire situation to satisfy the GMD authority and in that case the said authority would not have issued the order of demolition. The learned senior counsel, therefore, submits that the order of demolition issued by the Chief Executive Officer, GMDA dated 30.5.2006 is also illegal on both the grounds, firstly, the GMC has granted the permission for construction up to 8th floor and secondly, on the ground of violation of principle of natural justice as embodied in the Section 88 of the 1985 Act.
18. It has further been submitted by the learned senior counsel for the petitioners that the entire building has been assessed to tax by the GMC authority and such assessment naturally done on being satisfied about making construction in terms of the permission granted and, therefore, at this stage the authority of GMC and GMDA cannot turn around and say that the building constructed by the petitioner is unauthorized. The learned senior counsel in support of his contention that the interim order dated 20.9.2002 passed in W.P.(C) No. 5018 of 2002 ceased to operate after ten days, has placed reliance on the decision of the Apex Court in Dr. Luis Proto Barbosa v. Union of India and Ors. reported in (1992) Suppl. 2 SCC 644.
19. Mr. K.N. Chowdhury, learned Additional Advocate General, Assam appearing on behalf of the State respondents has submitted that for making construction of any building the permission from the GMC authority is a condition precedent and unless such permission is granted no construction can be raised by any one. It has further been submitted that such construction has to be as per the plan approved by the GMC authority and no deviation from such approved plan can be made. In the instant case according to the learned Additional Advocate General, the permission was admittedly given by the GMC authority for construction of 4 1/2 storied building apart from the basement and mezzanine floor, vide order dated 3.2.2000, thereafter no permission has been granted for raising any construction from part of the 5th floor and upwards. It has further been submitted that though the standing appellate committee passed the order dated 5.5.2000 setting aside the order of the Commissioner, GMC dated 27.3.2000 rejecting the application seeking permission to raise construction of part of the 5th floor up to 8th floor, passing of such order is itself illegal in view of the admitted position of the fact that the road by the side of which the building is constructed is 38 ft. width and under the building bye-laws of the GMC the maximum allowable height is double of the width of the road, i.e., 76 ft., but in the instant case the standing appellate authority has allowed construction up to 93 ft. which contravens the provision of the bye-laws and, therefore, such order of the standing appellate committee has no legal force and cannot be the basis for making construction beyond 76 ft. allowable under the bye-laws. The learned Additional Advocate General has further submitted that the order of the standing appellate committee dated 5.5.2000 lost its force after the communication dated 29.5.2002 was issued by the GMC by which the petitioners were asked to comply with certain conditions before granting any permission for construction of the building from part of the 5th floor and above and the said position has been accepted by the petitioners and not challenged before any court of law.
20. Referring to the communication dated 29.5.2002 issued by the Commissioner, GMC, the learned Additional Advocate General has submitted that it is evident from the said communication that the Administrator-cum-Minister, Gauhati Development Department has considered the appeal filed by the petitioners under certain conditions and in the event of fulfilling such conditions the permission would be granted. In the instant case, according to the learned Counsel, no authority including GMC authority approves any structural plan from part of the 5th floor and above and, therefore, there is no question of making any construction and any such construction made is unauthorized and liable to be demolished under the provision of the 1985 Act.
21. The learned Additional Advocate General has submitted that it is evident from the record of W.P.(C) 5018 of 2002 that though the order of status quo was passed by the learned Single Judge on 12.8.2002 directing to maintain status quo and in spite, of the further order dated 20.9.2002 passed in the said writ petition directing to stop any further construction, the petitioners have proceed with the construction by defying the orders passed by the learned Single Judge. Mr. Chowdhury refuting the submission that by order dated 12.8.2002 the writ petitioners were not prevented from making, any construction and the order dated 20.9.2002 preventing the petitioners therein from making any construction, was for ten days, has submitted that the order of status quo having been passed the parties to the proceeding have to maintain the status quo in all respect and the petitioners cannot take advantage of the order dated 20.9.2002, by which order the case was directed to be listed after ten days and meanwhile the writ petitioners were prevented from making any construction. The petitioners according to the learned Counsel knew that such preventive order continued in spite of the expiry of ten days and, therefore, on 30.9.2002 the Misc. case No. 1371 of 2002 was filed in the said writ petition by the petitioners prayed not to extend the interim order and if such order was valid for ten days there was no necessity of filing such application. In any case according to the learned Additional Advocate General even if there was no interim order passed restraining the petitioners from making any construction, any construction made by the petitioner was at his own risk in view of the fact that the municipal authority by order dated 31.7.2002 directed the petitioners to stop construction and the writ petitioners challenge of such order as well as the order of demolition in the writ proceedings is pending.
22. The learned Additional Advocate General further submits that any construction made in violation of the approved plan as well as the building bye-laws is liable to be demolished and accordingly the Chief Executive Officer, GMDA passed the order under Section 88 of the 1985 Act for demolition of the unauthorized construction from part of the 5th floor and above, that too after issuing notice and giving the petitioners reasonable opportunity to show cause. Referring to the order dated 30.5.2006 passed by the GMDA under Section 88 of the 1985 Act the learned Additional Advocate General has submitted that the notices were issued on 2.2.2001 as well as order of demolition was issued on 5.9.2001 and 18.2.2002. That apart by notice dated 4.10.2002 the inspection was conducted by the GMDA. It has further contended that the petitioners knew that they have no permission to make any construction beyond 4 1/2 floor which is also apparent from the reply submitted by the writ petitioner Sri Pramod Kr. Singhania on 18.2.2002 to the notice of demolition of even date issued by the GMDA as the said petitioner in the said reply has informed the GMDA that he has made the construction after obtaining permission from GMC vide order dated 3.2.2000, which relates to the permission up to part of the 5th floor only. In any case, according to the learned Additional Advocate General, the construction of part of the 5th floor and above is illegal and unauthorized, there being no approved structural plan.
23. Referring to the submission made by the learned senior counsel for the petitioners regarding the violation of natural justice and non-compliance of the requirement of issuance of notice before passing the order under Section 88 of the 1985 Act, the learned Additional Advocate General has submitted that the petitioners at least after receipt of the order dated 18.2.2002 came to know that there, is a proceeding relating to the unauthorized construction of the building and the requirement of Section 88 of the 1985 Act being not to take any action of demolition without prior intimation to the owner of the building, such requirement was fulfilled at least on 18.2.2002 and the petitioners having replied that there was no unauthorized construction and the construction was made pursuant to the permission granted by GMC authority on 3.2.2000 knew about the allegation that the petitioners were making unauthorized construction, therefore, it is not the requirement of law that each of the deviations have to be brought to the notice of the petitioner before issuing the order for demolition under Section 88 of the 1985 Act more so when the allegation is that the construction from part of 5th floor and above is unauthorized, being without any permission and without any approved plan. In any case according to the learned Additional Advocate General no prejudice was caused to the petitioners, as they knew about such proceeding of demolition of unauthorized construction, as well as the grounds thereof.
24. The learned Additional Advocate General, therefore, submits that the petitioners construction being unauthorized beyond 4 1/2 floors, the authority has rightly issued the order of demolition and the GMC authority rightly asked the petitioner vide order dated 31.7.2002 to stop construction. Mr. Chowdhury, learned Additional Advocate General countering the argument of the learned senior counsel for the petitioner regarding the assessment of building to tax has submitted that the assessment of the tax will not legalise any unauthorized construction made by the petitioners. Even if a building is assessed to tax under the provision of 1971 Act, such building can be directed to be demolished if the same is unauthorized being without permission and/or contrary to the bye-laws. It has further been submitted by the Mr. Chowdhury that the communication dated 29.5.2002 issued by the Commissioner, GMC reflecting the consideration by the Administrator, cannot be treated as the permission under the bye-laws. The petitioners cannot make construction beyond 76 ft. in height and compounding of such violation of the bye-laws is not permissible under the provision contained in Appendix III of the bye-law. The Additional Advocate General has further contended that the Appendix III of the building bye-laws for GMC provides the compoundable and non-compoundable items under the bye-law and it is evident from the said provision that addition of extra floor is non compoundable items meaning thereby that the same cannot be regularize by imposing any penalty for violation of any provision of the master plan/zoning plan regulations and bye-laws and, therefore, in any case the maximum allowable height of the building in that locality being 76 ft., no floor above that height can be allowed and, therefore, the order passed by the standing appellate committee as well as by the GMC even if the communication dated 29.5.2002 is taken as the order, being in contravention of the provision of the bye-laws as well as Appendix III to the said bye-laws, cannot be the basis for invoking the equitable jurisdiction of this court under Article 226 of the Constitution of India.
25. The learned Additional Advocate. General on the point of requirement of issuance of notice to the owner/occupier of the building before passing the order under Section 88 of the 1985 Act, has submitted that the notices have in fact been issued, which is apparent from the pleadings of the writ petitioners in the writ petitions including the annexures appended thereto and one of the occupier of the building being a party in the present writ petition, it cannot be said that the occupiers do not know about the demolition proceeding initiated by the authorities concerned and, therefore, even if the notices to all the occupiers of the building are not issued, no prejudice has been caused to them. Moreover, the Priyanka Estate International (P.) Ltd. being the builder who is one of the writ petitioners in two writ petitions and is responsible for the construction of the building was served with the notices.
26. Dr. N.K. Singh, the learned Counsel appearing on behalf of the GMDA adopting the argument of the learned Additional Advocate General has also submitted that the question which is involved in the present case is whether the petitioners have made any unauthorized construction and/or any construction which is not permissible under the law. The petitioners/builder according to the learned Counsel could not even produce the plan approved by the GMC authority to show that the structural plan for construction of building beyond 4 1/2 floor was approved so as to enable the petitioners to make such construction. Under the bye-laws no constructions can be made without any approved plan for that purpose, submitted by the learned Counsel. Dr. Singh, has further submitted that the GMDA has rightly issued the order under Section 88 on 30.5.2006 as the petitioners have made the construction without any permission from the concerned authority and without there being any plan approved for such construction. Dr. Singh referring to the record of the GMDA has further contended that the GMDA vide communication dated 21.2.2002 informed the petitioners to furnish all copies of approved drawings as well as building permission in support of their letter dated 18.2.2002 and accordingly the petitioner on 21.2.2002 and 2.4.2002 submitted the building permission dated 3.3.2000 issued by the GMC authority as well as the drawings approved by the GMC authority for construction up to 4 1/2 floors of the building apart from the basement and mezzanine floor but could not submit any permission or approved drawing/plan approved by any competent authority for construction of, building beyond 4 1/2 floors. Therefore, according to the learned Counsel, the petitioners knew that no plan/ drawing has been approved by the GMC authority for construction of the building beyond 4 1/2 floors. Therefore, the GMDA has rightly issued the order of demolition under Section 88 of 1985 Act, is the submission of the learned Counsel.
27. Mr. Samariah, learned Counsel appearing on behalf of the GMC authority has also adopted the submissions made by the learned Additional Advocate General and has further contended that as the petitioners were making construction without any plan approved for that purpose beyond 4 1/2 floor, stop construction notice was issued on 31.7.2002, but in spite of such notice the petitioners proceeded with the construction. The petitioners even before this court have failed to produce the approved plan to show that such plan for construction beyond 4 1/2 floors have been approved by any of the competent authority. Therefore, according to the learned Counsel, the stop construction notice was rightly issued. Referring to the order dated 29.5.2002, the learned Counsel has further submitted that the communication issued by the Commissioner, GMC authority cannot be treated as permission for construction as it is evident from the said communication that certain conditions were yet to be fulfilled for granting permission and such permission can be granted only after fulfilling those conditions. It has further been submitted that issuance no objection certificate by the GMC authority thereby granting permission to make construction alone is not sufficient unless the construction/structural plan is approved by such authority and in the instant case no such construction/structural plan for making construction beyond 4 1/2 floors have been approved as required under the building bye-laws and hence any construction made beyond 4 1/2 floor by the petitioners/builder is unauthorized construction and liable to be demolished, which was rightly ordered by the GMDA by issuing the order dated 30.5.2006 under Section 88 of the 1985 Act.
28. Mr. Das, learned senior counsel appearing on behalf of the petitioner in W.P.(C) No. 5146 of 2002, opposing such construction made by the petitioners/builder in the other writ petitions has also submitted that unless construction/structural plan is approved by the competent authority, no construction can be made and any construction without such approved plan is unauthorized construction. According to the learned senior counsel in the present case the petitioners could not place any document before this court to show that such plan for construction of the building beyond 4 1/2 floor was approved by any of the competent authority enabling the petitioners to make such construction and, therefore, the GMDA has rightly issued the order of demolition dated 30.5.2006 and the GMC authority as back as on 31.7.2002 rightly directed the petitioners to stop construction in the absence of any approved plan. Mr. Das, learned senior counsel has further submitted that no permission has been granted for construction beyond the 4 1/2 floor and, therefore, the petitioner cannot take shelter by the order dated 29.5.2002, even if the same amounts to giving permission and also the order passed by the standing appellate committee dated 5.5.2000, the same being contrary to the building bye-laws, under which the maximum height of the construction allowable in the side of the existing road of 38 ft. is 76 ft., but the standing appellate committee has allowed the petitioners to make construction up to 93 ft., which, on the face of it, is contrary to the building bye-laws of the GMC.
29. The learned Counsel in support of his contention has placed reliance on M.I. Builders (P.) Ltd. v. Radhey Shyam Sahu and Ors. ; Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority and Ors. , Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors. , Mahendra Baburao Mahadik and Ors. v. Subhash Krishna Kanitkar and Ors. .
(C) Relevant Legal Provisions:
30. The 1971 Act was enacted for constituting a Municipal Corporation for the city of Guwahati, which received the assent of the President of India on 1st January, 1973, making provision, inter alia, for formulation of development schemes in accordance with the bye-laws made in that behalf, which includes making provision for construction and re-construction of building and also provision for building control, i.e., prohibition of erection or re-erection of building without permission, submission of application for erection and re-erection of a building, refusal or grant of permission for such erection or re-erection, the period for which such permission remains valid, intimation about completion of the building and power to require removal or alteration of work not in conformity with bye-laws or executed notwithstanding rejection of plan. The said Act also empowers the GMC to make bye-laws relating to the building. The Act apart from others also provides for supersession of the GMC and its effect as well as the appeals before the standing committee against any order that may be passed by the Commissioner refusing to grant permission to construct or re-construct a building.
31. Chapter XXVI of Part VI of 1971 Act deals with, framing of development schemes for building as well as building control. Section 327 of the Act prohibits any person from erecting or re-erecting any building without written permission from the corporation. Section 328 provides for submission of an application by a person interested to erect or re-erect a building to the corporation for approval of the site together with a site plan with land title document, ground plan, elevation and sections of the building, specification of the work and also containing such particulars as may be required by bye-laws made in that behalf. Section 329 empowers the Commissioner to refuse such permission and to disapprove the site on the ground formulated in Section 330. Section 331 provides for the grounds on which permission to erect or re-erect the building can be refused by the corporation. Section 332 empowers the Commissioner to direct modification of the sanctioned plan of the building before its completion, Section 333 stipulates the period for which such permission for erection or re-erection of any building shall remain in force and Section 337 empowers the Commissioner to require removal or alteration of the work not in conformity with bye-laws or executed notwithstanding rejection of plan, etc.
32. The provisions of the 1971 Act relevant for the purpose of the present writ petitions are quoted below:
327. Prohibition of erection or re-erection of buildings without permission. - No person shall, -
(i) erect or re-erect any building ; or
(ii) commence to erect or re-erect any building ; or
(iii) make any material external alteration to any existing buildings ;
(iv) construct or re-construct any projecting portion of a building which the Commissioner is empowered to require to be set back or is empowered to give permission to construct or reconstruct -
(a) unless the Commissioner or the Engineer so empowered has either by an order in writing granted permission or has failed to intimate within the prescribed period his refusal to grant such permission; or
(b) after expiry of one year from the date of the said permission or such longer period as the Commissioner may allow:
Provided that nothing in this section shall apply to any work, addition or alteration which the Corporation may by bye-laws declare to be exempted.
328. Notice of building. - (1) Every person who intends to erect or re-erect a building shall submit to the Corporation, -
(a) an application in writing for approval of the site, together with a site plan of the land, and documents of title and, in the case of land which is the property of, the Government or of the Corporation a certified copy of the documents authorizing him to occupy the land and if so required by the Commissioner, the original document of documents; and
(b) an application in writing for : permission to execute the work together with a ground plan elevations and sections of the building and a specification of the work.
(2) Every plan of any building to be constructed wholly or partly of masonry submitted under Sub-section (1), shall, in token of its having been prepared by him or under his supervision, bear the signature of a surveyor, licensed or duly approved by the Corporation.
(3) Every document submitted under Sub-section (1) shall be prepared in such manner and shall contain such particulars as may be required by bye-laws made in this behalf.
(4) Nothing herein contained shall require a person to comply with they provisions of Clause (b) of sub-section, (1) of this section until such time as the site has been approved by the Commissioner or such person as he may direct:
Provided that an application shall be disposed of within 60 days from the date of receipt.
329. Commission to refuse erection or re-erection of building. - The Commissioner on the advice of the Engineer shall refuse to sanction the erection or re-erection of any building which is in contravention of any rule or bye-law made under the provision of this Act.
330. Grounds on which site or proposed building may be disapproved. -The Commissioner on the advice of Engineer may refuse to approve the site on which it is intended to erect or re-erect any building on all or any rule or bye-law made under the provision of this Act.
(a) that the erection or re-erection of the proposed building on such site would be in contravention of a development scheme under Section 322 or of any other provision of this Act or of any other enactment for the time being in force ; or
(b) that the site is in a portion of the city in which the position, and direction, of the streets have not been determined, and that the building which it is proposed to erect on such site will, in the opinion of the Commissioner obstruct or interfere with the construction in future of suitable streets in such portion of the city or the drainage, water supply or ventilation thereof:
Provided that any person to whom permission to erect or re-erect a building on such a site has been refused may, by a written notice to the Commissioner, require that the position and direction of the future street in the vicinity of his intended building be forthwith laid down and determined, and if such requisition be not complied with within one year from the date thereof may subject to all other provisions of this Act applicable thereto, proceed with the erection of his building; or
(c) that the site has been reclaimed or used as a place for depositing sewage, offensive matter or rubbish or the carcasses of dead animals or is otherwise insanitary or dangerous to health ; or
(d) when the site is in a portion of the city for which a development scheme has not been sanctioned by the Corporation and that the building which it is proposed to erect or re-erect on such site will, manner to be communicated in writing to the applicant, with the contemplated development scheme:
Provided that any person to whom permission to erect or re-erect a building on such a site has been refused may by written notice to the Commissioner, require that the preparation of a development schemed, for the portion of the city in which the said site is situated be proceeded with as early as circumstances may permit and if the applicant is not informed in writing within twelve months of the date of the requisition that the Corporation has sanctioned the said scheme, he may subject to all the other provisions of this Act applicable thereto, proceed with the erection or re-erection of the building in respect of which the application was made.
331. Ground on which permission to erect or re-erect building may be refused. - (1) The Commissioner shall not grant permission to erect or re-erect any building unless and until the Engineer has approved of the site thereof on an application under Section 328.
(2) The Commissioner may refuse permission to erect or re-erect any building, -
(a) if the plan and specifications submitted with the application show that such building is not in accordance with a development scheme sanctioned under Section 324 or with any provision of this Act, or any rule or bye-law made thereunder or any provision of any law for the time being in force ; or
(b) if in his opinion the erection or re-erection of such building would be a nuisance or injurious to the inhabitants of the neighbourhood or to the public ; or
(c) unless and until any plans, specification or particulars called for by him are supplied ; or
(d) if the proposed building would be an encroachment upon Government or municipal land; or
(e) if the site of such building does not abut on a street or a projected street or if there is no access to such building from any such street by a passage or pathway appertaining to such site.
337. Power to require removal or alternation or work not in conformity with bye-laws or executed notwithstanding rejection of plan, etc. - (1) If any building is erected or re-erected in contravention of any development scheme mentioned under Section 322 or any building bye-laws made under Section 416(1)D or without plans having been deposited, or notwithstanding the rejection of plans, or otherwise than in accordance with any requirements subject to which the Commissioner passed the plans, the Commissioner may, without prejudice to his right of taking proceedings in a Court of law for such contravention, by notice to the owner either require him to pull down or remove the work of if he so elects, to effect such alternation therein as may be necessary to make it comply with the said scheme or bye-laws or other requirements specified in the police.
(2) If any case in which the erection or re-erection of any building has been commenced or is being carried on unlawfully as mentioned in Sub-section (1), the Commissioner may, by a written notice, require the building operation to be discontinued from the date of service of the notice.
(3) If a person to whom a notice has been given under the foregoing provisions of this section fails to comply with the notice before expiry of seven days, the Commissioner may pull down or remove the work in question, or effect such alterations therein as he deems necessary, and may recover from him the expenses reasonably incurred by the Commissioner in so doing and such dues shall be recoverable as arrears of municipal tax.
(4) Where plans were approved, it shall not be open to the Commissioner to give such a notice on the ground that the building contravenes any scheme or bye-laws as the case may be or does not comply with his requirements under this Part.
33. Chapter XXVIII of the 1971 Act deals with framing of Rules, Regulations and bye-laws by the Corporation as well as by the State' Government. Section 416 empowers the GMC to formulate different bye-laws including the bye-laws relating to the building.
34. Section 425 of 1971 Act empowers the State Government dissolve the corporation for a period not exceeding six months on fulfilling the conditions stipulated therein. Sub-section (2) of Section 425 provides the consequences of such supersession. Sub-section (3) of the said section provides that the person or persons appointed by the Government under Clause (b) of Sub-section (2) shall be designated as administrator or council of administrators and shall, where the Government so directs, receive from the Municipal Fund such payment for his or their services as the Government may, from time to time determine.
35. Section 438 of the 1971 Act provides for appeal, from the order passed by the Commissioner including the order refusing to grant permission to construct or re-construct a building, to the standing committee of the corporation. Sub-section (3) of the Section 438 of the Act also empowers the State Government to call for the records of any matter from the corporation at any time and to pass such order as may be deemed necessary after examination of such records.
36. The Corporation pursuant to the power conferred by 1971 Act formulated building bye-laws for the GMC, which came into effect in the year 1998. Sub-clause (53) of Clause 2 of the said bye-laws defines "sanctioned plan" which means the set of drawings and statement submitted under the provision of the bye-laws in connection with a building and sanctioned by a competent authority. Chapter II of the said bye-laws lays down the procedure regarding construction of building. Clause V provides for giving a notice in writing to the Commissioner, GMC by every person who intends to erect or re-erect or make materials alteration in any place or part thereof within the jurisdiction of the GMC area accompanied by the plans and conforming to the requirements of Sections 327 and 328 of the Act. Sub-clause (3) of the said Clause 5 of the bye-laws requires that such notice must be accompanied by the site plan giving details about site over which erection or re-erection is proposed, the building plan, details of the plans of the building and elevation and sections accurately drawn and containing the complete layout of the plan, plan for all floors with the statement of the covered area of each floor, accessory buildings, basement plan and indicating the sizes of rooms, etc., service plan, specification as well as the ownership document. Clause 13 of the said bye-laws empowers the authority to direct stop construction if at any stage it is found that the construction is not made according to the sanctioned plan or in violation of the any provision of the bye-laws. Clause 17 provides for giving the completion certificate by the owner after completion of the construction in terms of the plan approves by the competent authority. Sub-clause (a) of Clause 17 provides for issuance of the occupancy certificate by the authority of GMC. Clause 17 of the said bye-laws provides what would be the maximum height of the building and also the additional requirement.
37. The relevant clauses of the said bye-laws are quoted below:
5. Notice. - (1) Every person, who intends to erect or re-erect or make material alteration in any place in a building or part thereof, within the jurisdiction of Guwahati Municipal Corporation area, shall give notice in writing to the Commissioner, GMC of his said intention in the form prescribed from time to time by the GMC, and such notice shall be accompanied by the plans and conforming to the requirements of Sections 327 and 328 of GMC Act, 1969 in triplicate on blue or white prints. One copy shall be retained in the office of the authority for record after issue of permission and the other two shall be returned to the applicant (one copy for submission to local body). In the event of authority returning the plans after some observations they will have to comply with in accordance with the building bye-laws.
(2) Exempted to Government. -
****** ******* ******** (3) Plans accompanying notice. - The following plans shall accompany the notice:
(a) Site plans. - The site plan drawn to the minimum scale of 1: 200 and shall show -
(i) the boundaries of the site with dimensions and of any contiguous land belonging to the owner;
(ii) the position of the site in relation to neighbouring streets with name of the street on which the building is situated ;
(iii) the position of the building and all other buildings (if any) which the applicant intends to erect upon his land in relation to -
(1) the boundaries of the site and in case where the site has been partitioned, the boundaries of the portion owned by the, applicant and also of the portions owned by other owners of that compact plot;
(2) the means of access from an existing street to the building;
(3) space to be left around the building to secure free circulation of air, admission of light ands across for scavenging purpose, etc. ;
(iv) scale with north line ;
(v) plot area, plinth area, each floor area ;
(vi) location, name and width of each adjacent road or lane ;
(vii) such other particulars as may be prescribed by the authority.
(b) Building plan. - The detailed plans of the building and elevation and sections sent with the notice shall be accurately drawn to a scale of 1 : 100. Adequate arrangement for proper drainage shall also be made. The plan shall include -
(i) complete layout plan of the area or areas showing location and width of all street dimensions, sizes and uses of all the plots ;
(ii) plans of all floors together with a statement of he covered area of each floor, accessory building and basement plan. Such drawings shall fairly indicate the size of rooms, size of windows and ventilators, size of door openings and stair runs ;
(iii) location of drains, sewers, public utility services, electric lines ;
(iv) exact location of essential services such as W. C. sink, bath, etc. ;
(v) proposed and existing works should be clearly indicated in different colours (other than red) or in marking ;
(vi) sectional drawings showing clearly the sizes of footings thickness of basement walls, if any, all roof slabs and floor slabs, ceiling heights and parapet height with their materials. The section shall indicate the drainage and slope of the roof. At least one section shall be taken through the staircase ;
(vii) details of served privies (if any); (viii) all street elevation;
(ix) scale with north line.
(c) Service Plan. - Details of private water supply, sewerage disposal system and detail of building services, where required by authority, shall be made available on a scale not less than 1: 200.
(d) Specification. - General specification of the proposed constructions, giving type of grade of materials to be used in the form given in Appendix duly signed by the R.T.P of Architect /Engineer/Structural Engineer, as the case may be; and counter-signed by the applicant shall accompany the notice.
(e) Supervision. - The notice shall be further accompanied by a certificate of supervision in the prescribed form given in Appendix by the R.T.P. In the event of the said R.T.P. ceasing to be employed for the work, the further development work stand suspended till a new R.T. is appointed and his certificate of supervision along with a certificate for the work already done (either from the previous one or the present) accepted by the authority. Additional documents, NOC that may be required other than those specified herein are given in subsequent chapters for various types of building.
(f) Any other statement as may be required by the authority.
(g) Ownership document. - Titleship document to justify the ownership of land. In case land is not owned by applicant, lease deed or a NOC for allowing applicant for construction in the form of affidavit.
***** ****** ******* ******
13. Construction not according to the plan. - Should the Authority detemine at any stage that the construction is not proceeding according to the sanctioned plan or is in violation of any of the provisions of these bye-laws, it shall notify to the permit holder and all further construction shall be stopped until correction has been effected and approved by the Authority.
If the permit holder fails to comply with the requirements at any stage of construction, the Authority is empowered to cancel the building permit issued.
****** ****** ****** ******
37. Maximum height of the building and additional requirement. -Building shall not exceed 3-storey or a height of 11.5 m. without the following additional provisions for open space all around the building except in cases where otherwise specified -
(i) the side and rear set backs shall be increased by 0.3 m. for every 1.5 m. additional height of the building in addition to the set backs already prescribed in this rule subject to a maximum of 4.5 m. side set back and 6 m. rear set back.
(ii) Building shall not exceed 1.5 times the width of the road plus front . open space subject to a maximum of 2 times the road width ;
(iii) Residential building should not be cut by 45 degree angle line drowns from the opposite edge of road. However, building up to two storeys is exempted of it.
(a) For the purpose of building height calculation, width of the road shall be taken as existing road width.
(b) Lift machine room, stair case, parapet height shall not be included in the height of the building.
(c) For a building constructed on stilt with provisions of ground level parking floor or semi-basement parking floor, the height of the building will be calculated by omitting the height of the parking floor up to a maximum of 2.4 m. for the purpose of building height subject to provision of exclusive parking in the ground floor.
(d) Building above the height of 15.82 m. shall require necessary clearance from State Fire Service.
(e) For a building with a height above 12 m. or above 4 floors including the ground floor, at least one lift shall be made available.
(f) For building in the vicinity of the aerodromes, the maximum height of such buildings shall be subject to conformity with the height limitations prescribed by the Civil Aviation Authorities from time to time and to this effect a No Objection Certificate issued by that authority shall be submitted by the applicant alongwith plans to the sanctioning authority.
(g) Height exceptions. - The following apartment structures shall not be included in the height of building:
(i) roof tanks and their supports not exceeding 1.5 m. in height;
(ii) ventilationing, air conditioning and lift-rooms and similar service equipments, stair-covered with roof up to 3 m. in height, chimney and parapet wall and architectural features not exceeding 1.5 m. in height.
38. Appendix III of the said bye-laws of GMC provides for imposition of penalties for violation of the provision of master plan/zoning plan regulations and bye-laws and also stipulates which of the violation are compoundable and which are non-compoundable. For better appreciation Appendix III of the bye-laws is re-produced below:
Appendix III PENALTIES TO BE LEVIED FOR VIOLATIONS OF PROVISION OF MASTER PLAN/ZONING PLAN REGULATIONS AND BYE-LAWS.
(i) All provisions of Bye-laws except items given below shall not be compounded/regularized and shall have to be rectified by alteration/ demolition at the risk and cost of owner.
Compoundable items:
(1) Coverage - Maximum of 15% (2) F.A.R. - Maximum of 10% (3) Set Back - Upto 2'-6" (4) Open Space - Maximum 10% reduction (5) Total Height of Building. - 1.5% Non-compoundable items: (1) Use of building (2) Addition of extra floor (3) Parking Norms
Note. - All cases of regularization given in these provisions will be applicable to construction carried out prior to December 1995. For future cases policy for regularization will be decided by sub-committee on Zoning appeals on appeal for such cases.
(ii) Rates for building constructed prior to June 1992.
1. Rs. 25.00 per sq. mtr. of area constructed unauthorisedly for residential building upto 110 sq. mtr., also for all public, and semi-public and utility buildings, religious institution and educational buildings.
2. Rs. 100.00 per sq. mtr. Or area constructed unauthorisedly for residential.
The building not specifically covered under above categories shall be compounded as decided by the Authority considering the merit of each case individually.
(iii) For building constructed between June 1992 and December 1995 the rates will be double the rates given in Clause (ii).
(iv) Additional penalties will be levied for infringe of setbacks as per the following rates in addition to the penalties proposed in Clauses (ii) and (iii).
Residential and non-residential buildings Upto 0.15 mtr. - no penalty Above 0.15 mtr. to 0.3 mtr. - Rs. 10.00 per sq. mtr. Above 0.30 mtr. to 0.75 mtr. - Rs. 20.00 per sq. mtr.
Note. - Authority may however refuse regularization of construction, even with penalties as specified in the above provisions if in the opinion of the Authority this may infringe public safety and general environment of adjoining area.
39. The 1985 Act was enacted by the State Legislature and received the assent of the President on 20.8.1987, providing for establishment of an authority for Guwahati Metropolitan Development Area and for matters connected therewith and incidental thereto. Section 3 of the said Act empowers the State Government to declare the area covered by the GMC area and any other areas contiguous to such area to be the Guwahati Metropolitan area for the purpose of the Act by issuing notification in the Official Gazette. There is no dispute that such notification was issued constituting the metropolitan area. Chapter X of the said Act provides for different legal proceedings, which includes provision relating to imposition of penalty for unauthorized development or for use otherwise than in conformity with the master plan and scheme, power to execute works on failure to comply with the notice, power to stop development and also power of demolition of the building. Sections 87 and 88 empowers the GMD authority to direct stop development/ construction and to demolish building on the grounds stipulated therein. Section 88 which empowers demolition of the building constructed is quoted below:
88. Power of demolition of building. - (1) Where any development has been commenced or is being carried on or has been completed in contravention of the Master Plan or development scheme or without the permission, approval or sanction referred to in Section 25 and Section 30 of the Act or in contravention of any conditions subject to which such permission, approval or sanction has been granted, the authority may in addition to any prosecution that may be instituted under the Act, make an order directing that such development shall be removed by demolition, filling or otherwise by the owner, occupier, manager or by any person at whose instance the development has been commenced or it being carried out or has been completed within such period not being less than five days and more than thirty days from the date on which a copy of the order of removal with brief statement of the reasons thereof has been delivered to the owner, occupier and manager or the person at whose instance the development has been commenced or is being carried out or has been completed as may be specified in the order and on his failure to comply with the order, the authority may remove or cause to be removed the development and the expenses of such removal shall be recovered from the owner, occupier, manager or any person at whose instance the development was commenced or was being carried out or was completed as arrears of land revenue provided that no such order shall be made unless the owner, occupier, manager or the person concerned has been given a reasonable opportunity to show cause why the order shall not be made.
(2) The provisions of this section shall be in addition to and not in derogation of any other provision relating to demolition of building contained in any other law for the time being in force.
(3) No compensation shall be claimed by any person for any damage which he may sustain in consequence of the removal of any development under this section or the discontinuance of the development under Section 87 of this Act.
(D) Case laws on which reliance has been placed by the learned Counsel for the parties:
40. Mr. Dutta, the learned senior counsel for the writ petitioner-builders placed reliance on Dr. Luis Proto Barbosa (supra) in support of his contention that the interim order passed on 22.9.2002 in W.P.(C) No. 5108 of 2002 lost its force after ten days as the court has directed listing of the case after ten days and meanwhile passed an interim order directing to stop construction. The Apex Court in Dr. Luis Proto Barbosa (supra) has observed that the expression "in the meantime" takes its colour from the context of the order passed, but in view of the facts involved in the said case the Apex Court has held that the order of "status quo" does not continue to operate from 30.10.1990 or even if did, it enured to the benefit of the appellant therein. The Apex Court in the said case has not laid down any rigid principle of law regarding the continuance of the interim order passed in the meantime but has held that the expression takes its colour from the context of the order passed.
41. Mr. Das appearing on behalf of the writ petitioner in WP(C) No. 5146 of 2002 has placed reliance on Zahira Habibulla (supra) in support of his contention that in spite of the repeated representation filed by the residents of the locality against the illegal and unauthorized construction made by the builder, the authority did not take any action against such builder and this court keeping in view the illegal construction made by the builder may not interfere with the order of demolition issued by the GMDA as doing justice, is the paramount consideration and such duty cast on the court cannot be abdicated or diluted and diverted as because the builder has completed the building in the meantime in spite of the interim direction issued by this court and on the plea that if the illegal construction is demolished that would cause heavy loss to the builder as well as to the persons to whom the flats were sold. The Apex Court in Zahira Habibulla (supra) while dealing with the case relating to a re-trial in a criminal case has observed that when an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of courts and erode in stages the faith inbuilt in the judicial system, ultimately destroying the very justice delivery system of the country itself. It has further been observed that doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings.
42. In Mahendra Baburao Mahadik (supra) on which the learned Counsel for the writ petitioners in W.P.(C) 5146 of 2002 as well as the learned Additional Advocate General has placed reliance, the Apex Court relying on various earlier pronouncements of the said court has held that the illegal constructions made in violation of the building regulations is required to be demolished and the power to grant permission for construction can be exercise only within the purview of the building bye-laws and there cannot be any regularisation of any unauthorized construction beyond the scope of the provision of law applicable to such construction. It has further been held that the power of Municipal Council being confined to the provision to the Act, no action can be taken by them contrary thereto or inconsistent therewith.
43. The Apex Court in M.I. Builders (supra) on which, Mr. Das, learned senior counsel appearing for the petitioners in W.P.(C) No. 5146 of 2002 has placed reliance, has held that unauthorized construction, if it is illegal cannot be compounded and has to be demolished as there is no way out. It has further been held that no consideration should be shown to the builder or any other persons where construction was unauthorized. In the said case the appellant and the prospective allotees of the shops prayed for exercising the judicial discretion in moulding the relief but the Apex Court held that such discretion cannot be exercised which encourages illegality or perpetuate illegality.
44. In the back drop of the legal provision regulating the grant of permission for construction of the building as quoted above as well as the principles of law laid down by the Apex Court in various pronouncements, as discussed above, we shall now proceed : to consider the argument of the learned Counsel for the parties.
(E) Decision and reasons thereof:
45. There is no dispute that the petitioners were granted permission for construction of the building containing basement, mezzanine floor, ground floor and 1st to 5th floor (V2 of the 5th floor) by the GMC on 3.2.2000 and that permission was given for use of the building for commercial purpose. The authority has also approved the structural plan for such construction up to part of 5th floor as required under the 1971 Act as well as the bye-laws. The petitioner-builder M/s. Priyanka Estate International (P.) Ltd. thereafter applied for a fresh permission for construction of remaining 1/2 of the 5th floor and up to 8th floor on 8.2.2000. The said application submitted by the said petitioner was rejected by the Commissioner, GMC on 27.3.2000. However, the standing appellate committee pursuant to the appeal filed by the builder under Section 438 of 1971 Act quashed the order of the Commissioner dated 27.3.2000 rejecting the application for permission for construction by holding that the petitioners are entitled to permission and accordingly directed the Commissioner, GMC to act accordingly. Admittedly said order was not acted upon by the Commissioner, GMC, therefore, the builder approached the Government seeking a direction to the Commissioner, GMC to issue the necessary permission pursuant such order passed by the appellate authority. The Deputy Secretary on 28.11.2001 informed the Commissioner, GMC to grant the permission pursuant to the said appellate order. Since no permission thereafter was also granted by the Commissioner, GMC, the builder again represented before the Minister, Guwahati Development Department, who happens to be the Administrator of GMC, the said body being under supersession and all the powers of the corporation being vested on the administrator by virtue of the provision of Section 425 of the 1971 Act. Apparently certain discussion took place between the Administrator and the builder, which culminated in issuing the communication dated 29.5.2002 by the Commissioner, GMC, informing him to comply with certain conditions for grant of permission and to pay the penal charge of Rs. 10 lakh. According to the petitioner the said communication is a permission granted by the Commissioner, GMC for construction up to 8th floor.
46. It is evident from the judgment and order passed by the standing appellate committee dated 5.5.2000 that the width of the road by which side the building was constructed is 38 ft. and according to Clause 37 of the bye-law the maximum allowable height of the proposed building is 2 times the road width, i.e., 76 ft. But the standing appellate committee taking into account the proposed extension of the width of the road, i.e., up to 40 ft. allowed the construction of the upper floors in anticipation of extension of such width of the road, up to 80 ft. Surprisingly the appellate authority at the same time held that the appellant be accorded the permission as sought for, though the appellant sought to construct the building up to 8th floor with the proposed height of 93 ft., which under no circumstances can be allowed under the bye-laws, as under Clause 37(ii) of the bye-laws the maximum height of the building cannot exceed 1.5 times, the width of the road plus front open space subject to a maximum of two times the road width. Appendix III of the said bye-laws also provides that addition of extra floor in a building is non-compoundable items, which cannot be regularize, by levying penalty for such illegal construction. As per the provision of the bye-laws the maximum allowable height of the building being 76 ft. taking into account the width of the said road being 38 ft, which position has not been disputed by the builder in the writ petitions, no permission for construction of the building beyond the height of 76 ft. can be granted. Such order of the standing appellate committee cannot confer any right on the petitioners to make any construction as the builder himself knew that the maximum allowable height in that road is up to 76 ft. only. The petitioner being a prudent builder as well as a businessman cannot say that he does not know the municipal bye-laws under which he sought permission for construction, therefore, the petitioners cannot be allowed to take advantage of such illegal order of the appellate authority to contend that permission was granted for construction of the building up to 8th floor by virtue of the order passed by the standing appellate committee. The plea taken in this regard evidently is an afterthought in which we find no merit.
47. That apart under Section 327 of 1971 Act no person can erect or re-erect, without the written permission from the authority. Section 328 of the said Act provides for issuance of a notice by the person who intends to erect or re-erect the building enclosing therewith the ground plan, elevation and section of the building as well as the specification of the work. Bye-law 5 of the building bye-laws also requires that such notice under Section 328 shall be accompanied by the site plan and building plan and conforming to the requirements of Sections 327 and 328 of the Act in triplicate on blue or white print and copy of which plan is to be retained by the authority after issue of permission and other two copies to be retained by the applicant. It is, therefore, evident that what is to be approved is the site plan as well as building plan submitted by the applicant for construction. Unless such building plan is approved no construction can be made by a person even if any appellate authority passes any order to the effect that the applicant be granted permission as sought for.
48. In the present case the builder-petitioners except producing the copy of the order passed by the standing appellate committee and the communication dated 29.5.2002 issued by the Commissioner, GMC could not produce any approved plan to show that such plan for construction of the building from part of the 5th floor up to 8th floor has been approved by any authority including the GMC. Most interesting part of the fact is that according to the petitioner-builders they obtained permission for construction of the building by virtue of the order dated 5.5.2000 passed by the standing appellate committee but the builder-petitioners at the same time pursuant to the notices dated 18.2.2002 and 3.5.2002 issued by the Chief Executive Officer, GMDA directing them to demolish unauthorized construction of 6th and 7th floors within three days, informed the GMDA that the permission has been accorded by the GMC on 3.2.2000, though the said permission was in respect of the construction up to part of the 5th floor. The petitioners again in reply to the notice dated 21.2.2002 issued by the GMDA asking them to submit the approved drawings informed the said authority about the permission dated 3.2.2000 granted by the GMC and on 2.4.2002 send the photocopy of the approved drawing. It is evident from the record produced by the GMDA that the builder-petitioners sent the drawings which was approved by the GMC for construction up to part of the 5th floor, therefore, the builder-petitioners all along knew that no other drawings except the drawings produced by him for construction up to part of the 5th floor was approved by the any authority including GMC authority authorizing him to make construction up to 8th floor. The petitioners at every stage mislead the authorities. Of course the authorities were obviously willing to be so mislead. It is also evident from the record of the GMC produced before this court that neither any permission as required under Section 327 of the 1971 Act as well as under the bye-laws was granted nor any structural plan for construction of part of 5th floor and above has been approved by allowing the builder-petitioners to make such constructions.
49. Section 88 of the 1985 Act empowers the GMDA to remove any construction by demolition, if such construction has been made in contravention of the master plan or scheme or without permission, approval or sanction. In the instant case the GMDA authority from time to time directed the petitioner-builder to submit the plan as well as the permission accorded by the GMC authority but the petitioner except producing the permission dated 3.2.2000 as well as the plan approved for construction up to part of the 5th floor could not produce any document to show that the permission was granted and the plan for construction above part of the 5th floor was approved by any authority. Moreover, as discussed above, no permission under the 1971 Act and the bye-laws framed there under for construction above 76 ft. can be granted to the petitioners-builder keeping in view the width of the road in question.
The Standing Appellate Committee's order itself in our considered opinion does not confer any legal right upon the petitioners to make any construction as such. We have already noticed the manner in which the Standing Appellate Committee decided the appeal preferred by the writ petitioners and expressed our opinion thereon. Such illegal order cannot be enforced by this court in exercise of its jurisdiction under Article 226 of the Constitution of India. This court, in exercise of its jurisdiction cannot grant any relief based on such patently illegal and void order. The Deputy Secretary to the Government may have become a privy to such illegal order by issuing a communication based on such illegal order passed by the Standing Appellate Committee. We are unable to conceive as to why or under what authority the Deputy Secretary to the Government could have directed the Commissioner, GMC to grant permission to the petitioner based on illegal order of the Appellate Standing Committee. The communication of the Administrator of the GMC (who happens to be not other than the Minister of Gauhati Development Department) directing the Commissioner to grant the permission subject to fulfilment of such conditions as reflected in the communication dated 29th May, 2002 suffers from the same vice. It appears to us that the authorities were conveniently dancing to the tune of the petitioners and with impunity violated the provisions of 1971 Act. It looks as if each one were competing with the other to help the petitioners enabling them to make illegal constructions. None of the authorities paid their attention to the relevant provisions of the Act before passing such orders and issuing such communication. Any directions from this court based on such patently illegal and void orders may amount to perpetuate the illegality for which purpose no writ lies. We have come across many such instances of illegality committed by the corporation. Instances are galore. The authorities have woken from their deep slumber only after directions were issued by this court but for which the indiscriminate and illegal constructions in this city of Gauhati would have continued uninterrupted.
50. The contention of the learned senior counsel for the petitioners is that before issuing the order of demolition under Section 88 of the 1985 Act by the GMDA, the builder as well as other occupiers are entitled to notice and in the instant case no such notices were issued. It has further been submitted by the learned senior counsel that issuance of such notices is not an empty formality but notices must contain the reasons for which the building is sought to be demolished. Referring to the notices dated 2.2.2001, 5.9.2001 and 18.2.2002 as well as on 3.5.2002 the learned senior counsel has submitted that in none of those notices the builder was informed about the grounds, which are the basis in passing the order dated 30.5.2006. It is no doubt that the said notices dated 2.2.2001, 5.9.2001, 18.2.2002 and 3.5.2002 do not disclose the details on which the building is stated to be unauthorized, but from the said notices it is evident that the builder was informed that his construction from 6th floor upwards are unauthorized and, therefore, he was asked to produce permission as well as the approved plan of the GMC, in response to which the builder produced the permission dated 3.2.2000 as well as the plan approved for construction up to part of the 5th floor. The petitioners, therefore, knew that the construction beyond part of the 5th floor is unauthorized and, therefore, even if the specific grounds on which the order dated 30.5.2006 has not been intimated to the petitioners in the earlier notices, it does not cause any prejudice to the builder-petitioners as he knew that the construction above the part of the 5th floor are illegal as there is no permission and approved drawing for that purpose from GMC or any other competent authority. The contention of the learned Counsel for the builder-petitioners that the order of demolition dated 30.5.2006 is also illegal, the same having been issued without issuing any notice and without affording any opportunity for hearing as required under Section 88 of the 1985 Act, also cannot be accepted as admittedly they received the communications dated 18.2.2002 as well as 3.5.2002 by which communications the builder was asked to demolish the illegal and unauthorized construction. The petitioner-builders have not challenged the said orders in any court of law. The purpose of issuance of notice before passing any order of demolition being to afford the opportunity to the builder before passing the order of demolition such object and the purpose have been fulfilled by issuing notices 18.2.2002 and 3.5.2002 even assuming notices dated 2.2.2001 and 5.9.2001 were not served on the petitioners/builder. Though the GMDA after issuance of the notices dated 18.2.2002 and 3.5.2002 ought to have taken the consequential action, for the reasons best known them, they choose not to take any consequential action and issued the belated order of demolition only on 30.5.2006. It is apparent from the records as well as the statements made in the writ petition that the petitioner-builders and also the occupier knew about the proceeding at least since 18.2.2002 and, therefore, the very purpose of issuance of notice before passing the order of demolition, cannot be said to be not fulfilled.
51. The other contention of the learned, senior counsel for the petitioner-builders that as the building has been assessed to tax by the GMC authority, after its completion no action can be taken for demolition of such building, cannot also be accepted as assessment of a building to tax cannot legalise an illegal and unauthorizedly constructed building. Even if a building is assessed to tax under the provision of 1971 Act the authority can proceed against such building if it has come to the notice of the authority that such building was constructed in violation of the provision relating to erection or re-erection of the building as well as the bye-laws. Assessment of tax cannot operate as estoppel against the statutory power conferred on any statutory authority relating to demolition of buildings
52. The contention of the builder-petitioners that the notices are required to be issued to the occupiers also, as the building has already been completed by virtue of the interim order passed by this court in W.P.(C) No. 5018 of 2002, cannot also be accepted as the builder was asked by the GMC authority to stop construction vide notice dated 31.7.2002, which has been challenged by the petitioner-builder in the said W.P.(C) No. 5018 of 2002. During pendency of the said writ petition if any construction is made by the petitioners/builder and sold it to any body that would be at the risk and peril of the builder-petitioners as well as the occupier. Therefore, even if the interim order dated 20.9.2002 remain valid for 10 days, the builder-petitioners by taking advantage of such order cannot make any construction during pendency of the writ petition challenging the stop construction notice and if he chooses to do so, it is at his own risk. The requirement of issuance of notice under Section 88 of the 1985 Act cannot be stretched to such an extent that when the building has been constructed by the builder even after issuance of the stop construction notice and during the pendency of the writ petition challenging such notice, the occupier of such building to whom it is sold, is required to be issued with a notice before passing any order under Section 88 of the 1985 Act. In the instant case in fact one of the occupier of the building is a petitioner in W.P.(C) No. 2747 of 2006 and, therefore, it can be presumed that the occupiers of the building, if any, know about the pendency of the proceeding relating to the building. No construction could have been made under the guise of the interim order passed by this court. Occupiers, if any, obviously came into picture only after the initial notices were issued directing the builders to stop construction. They have purchased the apartments with their eyes wide open as regards the controversial nature of the construction of the building by the petitioner-builders. They have willy-nilly became parties to the illegalities brazenly committed by the petitioner-builders. They cannot be permitted to plead their ignorance in the matter.
The principles of natural justice are not rigid but flexible in their nature and constantly require situational modification. Our understanding of principles of natural justice now must be modified to take into account the disastrous consequence that follows from their routine application in isolation of the realities. At any rate they cannot offer any better explanation and set up a different case other than the one before us at the instance of the builders, which we have considered in detail. What is sauce for goose is sauce for gander. We accordingly reject the submissions made by the learned senior counsel in this regard.
53. Another aspect of the matter is that, as discussed above, the GMDA in fact on 18.2.2002 and 3.5.2002 issued orders to demolish the illegal construction made by the builder-writ petitioners from 6th floor and above and the said orders of demolition have never been challenged by the builder before any court of law. The builder in spite of such orders even continued to make construction thereafter also by giving a deaf ear to the various notices as well as the said orders of demolition. The builder knew that he made the construction from part of the 5th floor and above without there being any approved plan for that purpose and he having continued to make construction in spite of the such notices and orders has to face the consequence and if necessary to compensate the persons who have purchased the flat in the said building, in the event of initiation of any proceeding against the builder-petitioner by such purchaser. The action on the part of the builder in making such illegal construction cannot be condoned and is to be dealt with firm hand.
54. It is also evident from the records of W.P.(C) No. 5018 of 2002 that the builder-petitioners were restrained vide the interim order dated 20.9.2002 passed therein from making any further construction but in spite of that by taking advantage of the word "in the meantime" occurring in the said order, the builder has proceeded and made no holds-bar construction with impunity and in a brazen manner that too without their being any sanction/approved plan by the authority including the Gauhati Municipal Corporation, which is the basic requirement before undertaking any construction. The petitioners have displayed their arrogance and undoubtedly over reached the orders passed by this court misinterpreting them to suit their convenience. They have become law unto themselves and perhaps emboldened by active co-operation and assistance from all quarters in the matter of illegal constructions. We will be failing in our duty if we do not take note of the conduct of the petitioner-builders which disentitles them to any relief whatsoever from this court in this judicial review proceeding. That apart the builder has at the same time crossed the allowable height of 76 ft. by constructing up to the 8th floor, when no permission, as prayed by the builder-petitioner before the GMC authority, for construction beyond 76 ft., can be granted under the provision of this 1971 Act as well as in terms of the bye-laws framed there under.
55. The petitioner-builder in the instant case has challenged the order passed by the GMC authority directing to stop construction as well as the order passed, by the GMDA to demolish the unauthorized construction basing his right on the illegal order passed by the standing appellate authority as well as the direction issued by the Deputy Secretary. As discussed above, the said orders on which the builder-petitioners based their right are contrary to the provision of the 1971. Act and bye-laws framed thereunder. The builder-petitioners cannot be allowed to claim right on the basis of the order passed by the standing appellate authority, which is in complete violation of the 1971 Act and the building bye-laws framed there under and as such illegal.
56. In view of the aforesaid discussions, we are of the view that as the builder-petitioners do not have any permission and no plan for construction of the part of the 5th floor and above has been approved by the any competent authority, the stop construction notice as well as the order of demolition were rightly passed by the GMC and GMDA respectively, therefore, the same do not require any interference in the hands of this court. However, as the learned Additional Advocate General as well as the learned Counsel for the GMDA and CMC authority have submitted that the notice as well as the demolition order relates to the part of the 5th floor and above, and keeping in view the fact that no structural plan for that part of the construction has been approved by any competent authority and no construction beyond 76 ft. in height can be allowed by the side of the road in question, as per the bye-laws, and also keeping in view the fact that permission for construction and also the structural plan was approved by the GMC authority for construction up to part of 5th floor, it is made clear that the demolition order shall be confined to part of the 5th floor and above thereon only.
57. The writ petition (C) No. 5018 of 2002 and 2747 of 2006 are, therefore, devoid of any merit, and hence the same are dismissed without costs. The writ petition(C) No. 5146 of 2002 is allowed to the extent indicated above with costs.