Gauhati High Court
Islamuddin Ahmed vs Bijoy Singh Baid & 3 Ors on 30 May, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP(I/O) 3 of 2017
ISLAMUDDIN AHMED .....Petitioners
-Versus-
1. DR. BIJOY SINGH BAID
2. THE MUNICIPAL BOARD, DHUBRI .....Respondents
3. THE STATE OF ASSAM
4. THE DEPUTY COMMISSIONER, DHUBRI .....Proforma Respondents.
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. A.C. Sarma, Mr. B. Haider, : Mr. G. Bharadwaj, Mr. B. Mandal.
Advocates for the Respondents : Mr. R.K. Jain, Ms. U. Sahu (R-1) : Mr. P.S. Bhattacharjee (R-2) : Mr. S. Roy, Mr. J. Dutta, GA, Assam.
Date of hearing : 04.05.2017
Date of judgment and order : 30.05.2017.
JUDGMENT AND ORDER (CAV)
Heard Mr. A.C. Sarma, learned Senior Counsel for the petitioner, i.e. Islamuddin Ahmed, Mr. R.K. Jain, learned Counsel for the respondent No.1, i.e. Dr. Bijoy Singh Baid, Mr. A.P. Bhattaharyya, learned Standing Counsel for the respondent No.2, i.e. Municipal Board, Dhubri, and Mr. C.K.S. Barua, learned State Counsel for the Respondent No.3 and 4, viz., The State of Assam and The Deputy Commissioner, Dhubri.
CRP (I/O) 3/2017 Page 1 of 122) Owing to the nature of dispute raised herein, this revision has been taken up for final disposal at the admission stage as consented to by the learned Counsels of all sides.
3) The respondent No.1 had filed a suit for declaration, injunction for demolition of illegal construction raised by the petitioner herein and as per the statements made in the plaint, the allegation was that the petitioner was raising his construction in violation of the sanctioned plan. The petitioner contested the suit and raised a preliminary issue of maintainability of the suit for non- compliance of mandatory provisions of section 326 of the Assam Municipal Act, 1956 (hereinafter referred to as the "1956 Act"), which requires issuance of one month's notice to the concerned Municipal authorities before filing the suit. The learned Trial Court rejected the said application. Aggrieved by the same, by filing this revision under Article 227 of the Constitution of India, the petitioner has assailed the said order dated 28.11.2016 passed by the learned Munsiff No.1, Dhubri (hereinafter referred to as the "learned Trial Court"), in Title Suit No. 459/2016.
4) The learned Senior Counsel for the petitioner submits that at the time of filing the said suit, while the Respondent No.1 craved leave of the learned Trial Court under section 80(2) of the Civil Procedure Code (hereinafter referred to as the "Code"), for instituting a suit without issuance of notice under section 80 of the Code. However, one month's notice as contemplated under section 326 of the Assam Municipal Act, 1956 (hereinafter referred to as the "1956 Act") was not issued upon the respondent No.2 herein and, the non-compliance thereof, being fatal to the maintainability of the suit, the petitioner raised a preliminary issue of maintainability of the suit. However, the learned Trial Court by holding that the provisions of section 326 of the 1956 Act was not attracted in the suit and admitted the plaint for hearing, which is in challenge herein.
CRP (I/O) 3/2017 Page 2 of 125) The learned Senior Counsel for the petitioner has further submitted that the provisions of section 326 of the 1956 Act was mandatory and was not dependent on the merit or demerit of the suit. It is submitted that there was no provision in the said 1956 Act similar or para-mateira to the provisions of section 80 of the Code. Hence, in the absence of any enabling provisions in the said 1956 Act, the same ought to be taken as mandatory and once such notice as contemplated under section 326 of the 1956 Act is found to be not served, the same is fatal and, as such, the learned Trial Court had committed jurisdictional error in proceeding with the suit and in rejecting the plea of non-maintainability of the suit, as raised by the petitioner before the said learned Court. In order to press his point, the learned Senior counsel for the petitioner has relied on the following case law citations:-
a. Nagar Palika Parishad, Mihona & Anr. V. Ramnath & Anr., (2016) 6 SCC 394;
b. B. Majumdar V. Jorhat Municipal Board & Anr., (2007) 4 GLR 269; c. Unreported judgment dated 02.05.2013 of the Hon'ble High Court of Chhattisgarh in S.A. No. 10/2009 (M/s. Mangilal Pagariya Builders & Contractors V. Nagar Palika Nigam, Raipur);
d. Unreported judgment dated 16.07.2010 of the Hon'ble Bombay High Court in Jijamata Sahakari Sakhar ... V. Union of India (print-out from website of indiankanoon.org).
6) Per contra, the learned Counsel for the respondent No.1 by relying on his affidavit-in- opposition filed on 21.03.2017 has submitted that on the perusal of the statements made in paragraph 5 of the plaint, it would be crystal clear that the respondent No.1 had indeed issued statutory notice as required under section 326 of the said 1956 Act. It is submitted that when it appeared to the respondent No.1 that the construction that was being carried out by the petitioner was not in accordance with the norms, he had submitted his complaint before the Municipal Board, Dhubri. Thereafter, on 15.06.2016, the said authority had directed the petitioner to stop construction. The authorities of the Dhubri CRP (I/O) 3/2017 Page 3 of 12 Municipal Board called the petitioner as well as the respondent No.1 for hearing on 20.06.2016. In the said hearing, the respondent No.1 found out for the first time that the petitioner was carrying out his proposed construction in violation of the prevailing norms. It is also submitted that it was the pleaded case of the respondent No.1 in the plaint, that the authorities of Dhubri Municipal Board were in collusion with the petitioner and they had asked the respondent No.1 to compromise the matter with the petitioner. But the respondent No.1 did not do so. Thereafter, on and from 29.06.2016, the petitioner resumed his construction and, as such, once again on 30.06.2016, the respondent No.1 had submitted his complaint before the authorities. The respondent No.2 i.e. the Municipal Board, Dhubri, once again by a letter dated 04.07.2016, directed the petitioner to stop construction and this time, they only asked the petitioner to appear before them on 15.07.2016. However, on 23.09.2016, the petitioner once again resumed his construction and aggrieved by the same, the respondent No.1 served a notice dated 27.09.2016 under section 326 of the 1956 Act, the receipt of which was duly acknowledged on 28.09.2016.
7) The learned counsel for the respondent No.1 further submits that the respondent No.1 was then asked to appear before the respondent No.2 on 01.10.2016 and in the said hearing, the respondent No.1 had reiterated his grievances. The authorities also heard him on 02.10.2016, but on 02.10.2016, the petitioner had resumed his construction. Thereafter, on 04.10.2016, the respondent No.1 was served with a copy of letter dated 01.10.2016 issued by the respondent No.2, by which the authorities had allowed the petitioner to resume construction by imposing penalty of 5 times the usual building permission fees.
8) It is submitted that the complaint made before the authorities was a continuation of his same grievance that the petitioner was carrying out illegal construction and therefore, for every letter or order issued by the respondent No.2 in the same matter, the respondent No.1 cannot be compelled to issue one notice after another under section 326 of the 1956 Act, which would render him CRP (I/O) 3/2017 Page 4 of 12 remediless as the respondents could frustrate every notice by issuing another letter or notice or by carrying out yet another illegal act and it would be absurd to expect that a citizen would carry on giving one notice after another under the said provision. It is also submitted that notwithstanding that the notice under section 326 of the 1956 was given, yet an alternative argument was advanced that the non-compliance of issuance of under section 326 of the 1956 Act could not amount to ouster of jurisdiction of civil courts as a civil court derived jurisdiction to entertain a suit under section 9 of the Code. In order to press his argument, the learned counsel for the respondent No.1 had relied on the following case law citations:-
a. Esha Ekta Apartments Cooperative Housing Society Ltd.& ors. V. Municipal Corporation of Mumbai & ors., (2013) 5 SCC 357. b. M/s. Lalchand Chhaganmal Firm & Anr. V. Municipal Board of Karimganj, ALR 1970 A&N 214;
c. Sudhan Chandra Gogoi V. Smt. Lakhyahira Das & ors., (1983) 1 GLR Supp 169 (Full Bench);
d. Debendra Ojah V. The Barpeta Municipal Board & Anr., (1984) 1 GLR 386 (Division Bench);
e. Daulatram Lakhani V. The State of Assam & Ors., (1989) 1 GLR 131.
9) The learned Counsel for the respondent No.2, i.e. Dhubri Municipal Board had produced the relevant records as received by him and supported the case of the petitioner. On the perusal of the said record, the notice dated 27.09.2016, issued by the respondent No.1 under section 326 of the 1956 Act is available. It further appears that the Municipal Board in its emergent meeting called on 01.10.2016 had resolved to impose a "penalty of 5 (five) times of the rate of normal building permission fees as per provisions of Schedule-VIII, Rule 18, Clause vi(b) of Assam Building Rules, 2014 for resuming construction."
10) The learned State Counsel appearing for the respondents No.3 and 4 submits that as the concerned party is the Respondent No.2 and they had CRP (I/O) 3/2017 Page 5 of 12 nothing to do with the construction that was being carried on and, as such, he had nothing more to add to the arguments advanced by the other parties.
11) Having heard the learned counsels for the parties, this court deems it proper to extract the provisions of the said Schedule-VIII, Rule 18, Clause vi(b) of The Assam Notified Urban Areas (Other than Guwahati) Building Rules, 2014 (hereinafter referred to as The '2014 Rules' for short) upon which the learned counsel for the respondent no.2 was relying. It is as follows:-
"Schedule-VI I I -
(i) Rate of application fees for erection of new residential building (including group housing, institutional building religious, cultural etc.) shall be as under. xxxx xxxx xxxx xxxx
(vi) If a building or a part of the building has been constructed unauthorizedly, i.e. without obtaining the required building permit from the Authority as required by these rules, the same shall be compounded at the following rates provided, that the construction otherwise conforms to the provisions of these rules.
(a) Five times the rate of normal permission fees; for residential, public and semi public, institutional, educational buildings
(b) Ten times the rate of normal permission fees; for commercial, apartment, industrial and similar buildings
(c) For incomplete building, compounding fee shall be calculated on the pro rata basis."
12) On the perusal of the cases cited by the learned counsel for the parties, this Court is of the opinion that only the case of Devendra Ojha (supra) is relevant under the facts of the present case. It would be relevant to mention CRP (I/O) 3/2017 Page 6 of 12 that while deciding the said case, the Hon'ble Division Bench of this Court had relied on the case of Chairman, Doomdooma Town v. Jugal Prasad, (1965) ILR VI Assam 1, wherein by referring to Section 320 of the Assam Municipal Act, 1923, which is precisely the same as the provisions of Section 326 of the Assam Municipal Act, 1956, it was held that expression "for anything done under the Act" mean acts strictly done under the Act and not those acts which the Board do in purported exercise of its powers. It was held that it would not be sufficient to apply the provisions even if it is established that the Board did something purporting to exercise its power under the Act. The relevant paragraph 3, 5, 6 and 8 are quoted below:
"3. The provisions of the Act lay down a complete procedure for taking action under the Act, Rules and Bye-laws. Apart from this procedure they enable a person aggrieved by any action of the Board or its officers in obtaining the necessary relief. Now, are the provisions of Section 326 of the Act applicable to all acts or actions of the Board? Broadly speaking there may be three classes of actions. First, action taken conformable with the provisions of the Act, within the jurisdiction of the Board or its officers. Secondly, an action may be professedly done under the Act which is sometimes staled as act purportedly done. The third category of action may be wholly illegal, in contravention of "the Act" or act beyond the jurisdiction of the Board. In our opinion the second and third categories of actions do not fall within the ambit of Section 326 of "the Act" The expressions used in Section 326 takes within their folds only such act which is "done under this Act or any rule or bye-law" and, excludes all other actions, including act done in purported exercise of the power. An action having the appearance of being done under the Act, rules or bye-laws have been omitted, whereas similar acts are CRP (I/O) 3/2017 Page 7 of 12 saved in other laws. Acts done contrary to law but bonafide done also do not fall within the Section. Only "action directa"
or action founded on strict law and conducted according to fixed forms falls within the ambit of Section 326. No purported action done contrary to the provisions of the Act does attract Section 326. Therefore, if the Board acts strictly within its jurisdiction or takes action fulfilling the requirements or the provisions of the Act, the case may fall within Section 326 otherwise not.
5. In our opinion purported acts do not attract Section 326 of "the Act". Section 326 is also not attracted when the action is 'ultra-vires' or illegal or wrongful. Professedly done acts, though seem to have been done in pursuance of the Act, are done without a vestige or semblance of authority or short of a right in the Board or its officers doing those Acts, therefore, such acts also do not fail within Section 326. Only the acts done strictly in conformity with the provisions of the Act attract the provisions of Section 326.
6. We find that the areas of operation of Section 326 is very much constricted. Even colourable exercise of the powers or actions professedly done do not fall within the contours of Section 326. While reaching the conclusion we have derived considerable assistance from Chairman, Doomdooma Town Committee vs. Umed Sarma S.A. No. 124 of decided on 22.07.1980 by Hansaria. J.
8. If the Municipality threatens a person to evict him from his property without any authority of law or threatens to evict a lawful owner of a property on the assumption that the Board is the owner of the property, is the person threatened by the action obliged to serve notice, wait for two months? By that time he might be evicted unless he obtains an appropriate CRP (I/O) 3/2017 Page 8 of 12 order from a competent Court questioning the validity of the actions. No such illegal act or action professedly done under the Act can stand as a bar to action under Section 326 of "the Act".
13) Keeping in mind the above quoted passages of the judgment rendered by the Hon'ble Division Bench of this Court in Devendra Ojha (supra). It would be pertinent to refer to Clause- VI of Schedule-VIII of 2014 Rules, which is quoted above and it would be apparent that the compounding is permissible at the prescribed rates only of the construction otherwise conforms to the provisions of the said 2014 Rules. Referring to the order dated 01.10.2016, by which the Municipal Board, Dhubri permitted the petitioner herein to resume construction, it is apparent that there is nothing recorded therein to show that the building which was being constructed was as per the prescribed norms. On the contrary, as per the records produced by the learned standing counsel for Municipal Board, Dhubri, the relevant portion of note dated 01.10.2016 (page 43 to 44 of the record) reads as follows:
"On perusal of above note, it is revealed that one Shri Islamuddin Ahmed of Dhubri Town W/No. 1, has violated Clause 67/2 (a) and providing Rules 2014, Shri Ahmed had also submitted modified plan for use of commercial purpose from domestic. The matter had been discussed in the board meeting held on 15.09.2016 and the undersigned was entered to (illegible) and take needful action. Accordingly, self visited the site along with technical staff and some of the ward Commissioner on 17.09.2016. On inspection, some deviation in the construction from the approved building plan was found in contravention of provisions of clause 67/2 (a) and (b) of Building Rules 2014. The modified plan cannot be entertained due to shortage of minimum required area. The super structure of the building up to G+2 level has already been constructed.CRP (I/O) 3/2017 Page 9 of 12
Meanwhile, earlier complaint petition had been received from Dr. Bijoy Singh Baid against the alleged illegal construction. Both the parties were called upon and heard on 29.09.2016.
The outcome of the hearing and my findings of physical inspection and my personal view was placed before the emergent board meeting held on 1st Oct., 2016. The meeting resolved to allow completion of construction imposing penalty of 5 lines of the rate of the normal building permission fees as per Schedule-VIII Rule 18, Clause VI of the Building Rules, 2014. Further Shri Islamuddin shall give an undertaking in this regard. The board was taken such decision as the violative was to Board's notice after completion of super structure up to G+2 and dismounting at this stage is a costly affair and not appropriate. Considering above, facts we may allow to resume his construction.
Put up for favour of kind perusal and approval if please.
S/d. dated 01.10.2016"
14) From the note as quoted above, it is prima-facie evident that on inspection by the authorities, some deviation in the construction from the approved building plan was indeed found. Therefore, the said construction was in contravention of the provisions of clause 67(2)(a) and 67(2)(b) of the aforesaid 2014 Rules. The said Regulation 67(a) and 67(b) provides that when the set back of the building is up to the height of 11.5 m. under sub-regulation 2 (a), the minimum front set back is of 3.0 m. with 1.5 m cantilever in upper floor and that under sub-clause 2 (b), a minimum of 1 m. set back has to be maintained in each side, which can be relaxed to only one side if the adjoining plot owner agrees to have a common wall with his building.
15) The record produced also shows at page-22 thereof that the notice dated 29.09.2016 issued by the respondent under Section 326 of the 1956 Act is available on record. The said notice was duly received in the office of the CRP (I/O) 3/2017 Page 10 of 12 Municipal Board, Dhubri, under serial No. 1479 dated 27.09.2016. Therefore, this Court has no hesitation to hold that the respondent No. 1 had duly complied with the requirement of section 326 of the 1956 Act before instituting the suit. Hence, except for the case of the Devendra Ojha (supra) none of the other cases cited by the learned counsel for the parties are of any relevance under the present facts of the case. The 1956 Act contemplates complete issuance of a notice under Section 326 as a pre-condition to file a suit, and in the present case a notice dated 29.09.2016 was issued under Section 326 of the 1956 Act, alleging that the respondent was making an illegal construction. This Court is of the considered opinion that it is not the intent and purport of section 326 of the 1956 Act that the respondent No.1 was required to serve separate notices in respect of any or every action or order passed by the Municipal Board in connection with his complaint against construction being carried out by the respondent No.1.
16) Moreover, as it is the finding recorded in note sheet of the Municipal Board, Dhubri which was produced before this Court, it is a matter of record that the construction which was being carried out by the petitioner was in violation of the 2014 Rules. Hence, the provisions of Clause vi(b) of Schedule-VIII of the aforesaid 2014 Rules does not empower the Dhubri Municipal Board to compound any unauthorized construction, if such construction did not conform to the provisions of the Rules. Under the circumstances, the action of the Municipal Board, Dhubri, by permitting the petitioner to carry out his proposed construction, does not fall within the meaning of valid action under the provisions of the Municipal Act, 1956. Hence, notwithstanding that the respondent No. 1 had issued notice to the Municipal Board, Dhubri under Section 326 of the 1956 Act, as per the ratio of the case of Devendra Ojha (supra), such an action being contrary to the provisions of the Act does not attract Section 326 of 1956 Act.
17) Hence, this Court is of the considered view that no jurisdictional error was committed by the learned Munsiff No. 1, Dhubri in passing the impugned CRP (I/O) 3/2017 Page 11 of 12 order dated 28.11.2016 in connection with T.S. No. 459/2016. Hence, this revision is found to be without any merit and the same is dismissed.
18) It is made clear that the observations made hereinbefore shall not prejudice any party in the suit as the observations are only for the purpose of the disposal of this revision.
19) As the records produced by the learned standing counsel for the respondent No. 2 i.e. Municipal Board, Dhubri are only photocopies save and except page 17 (building plan), the same is order to be retained in file. The learned standing counsel for the respondent No. 2 is permitted to collect the original building plan upon furnishing a photocopy thereof to the registry to be made a part of the records produced by him.
20) Accordingly, the revision is dismissed. 21) The parties are left to bear their own cost. 22) The parties are directed to appear before the learned Trial Court on
15.06.2017 to seek further instructions from the said learned Court without any further notice to appear.
JUDGE Mkumar.
CRP (I/O) 3/2017 Page 12 of 12