Meghalaya High Court
Shri. J.M. Thangkhiew And Ors vs The State Of Meghalaya And Ors on 28 September, 2015
Author: T.N.K. Singh
Bench: Uma Nath Singh, T. Nandakumar Singh
1
THE HIGH COURT OF MEGHALAYA
PIL No.1/2014
1. Shri. J.M. Thangkhiew, Advocate
2. Shri. Gilbert Anthony Dkhar, Advocate
3. Shri. Rijiedlang Kharsyad, Advocate
4. Shri. Lalsolomon Darnei, Advocate
All practicing Advocates of the High Court of Meghalaya
and other subordinate courts, High Court of Meghalaya,
Shillong-793001, East Khasi Hills District,
Meghalaya. :::: Petitioners
-Vs-
1. The State of Meghalaya, represented by the Chief Secretary,
Govt. of Meghalaya, Shillong.
2. Commissioner & Secretary, Revenue & Disaster Management
Department, Govt. of Meghalaya, Shillong.
3. The Meghalaya Urban Development Authority, Shillong
represented by its Secretary, Shillong.
4. The Deputy Commissioner (Revenue), East Khasi Hills
District, Shillong.
5. Shri. Narayan Prasad Jhunjhunwala,
R/o Police Bazar, Shillong.
6. Shri. Nilesh Tiberwalla,
R/o Thana Road, Police Bazar, Shillong.
7. Shri. Satyabrata Baidya,
R/o Jail Road, Shillong.
8. Shri. Ajit Das Gupta,
R/o Jail Road, Shillong.
9. Shri. Bidur Das,
R/o Jail Road, Shillong.
10. Shri. Uday N. Shukla,
R/o Oakland, Shillong.
11. Shri. Raj Kumari Sinha,
R/o Bivar Road, Shillong.
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12. M/s Mentok Ri-Project Pvt. Ltd.,
Bivar Road, Shillong.
13. Shri. Maruf Elahi,
R/o Bivar Road, Shillong.
14. Smti. Beroline Khongshei,
R/o Laban, Shillong.
15.Shri. Mohendro Rapsang,
R/o Keating Road, Shillong.
16. Smti. Saini Pala,
R/o Motinagar, Shillong.
17. Shri. Sanjib Das,
R/o G.S. Road, Police Bazar, Shillong.
18. Manchin Fincon Pvt. Ltd.,
R/o Jail Road, Shillong.
19. Shri. Kenneth M. Lyngdoh,
R/o Bivar Road, Shillong.
20. Shri. Sanjay Jhunjhunwalla,
R/o Bivar Road, Shillong.
21. Shri. Modrick Nongkynrih,
R/o Bishop Cotton Road, Shillong.
22. Shri. B.D. Marbaniang,
R/o Demseiniong Laitumkhrah, Shillong.
23. Shri. Lambok Mylliemngap,
R/o Motinagar, Shillong.
24. Dr. (Mrs.) T.A. Sohklet,
R/o Lummawrie, Laitumkhrah, Shillong.
25. Shri. Allen Wood Swer,
R/o Fire Brigade, Laitumkhrah, Shillong.
26. Secretary, Islamia Secondary School,
G.S. Road, Shillong.
27. Shri. P. Dkhar,
R/o Laban, Shillong.
28. Shri. Nicholas Wallang,
R/o Boyce Road behind St. Anthony's College,
Shillong. :::: Respondents
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BEFORE
HON'BLE MR. JUSTICE UMA NATH SINGH, CHIEF JUSTICE
HON'BLE MR. JUSTICE T. NANDAKUMAR SINGH
For the Petitioners : Mr. K Paul, Adv
Mr. JM Thangkhiew, Adv
For the Respondents : Mr. ND Chullai, Sr. GA
Mr. S Sen Gupta, GA for respt.No.1, 2 & 4
Mr. SP Mahanta, Sr. Adv,
Ms. S Pde, Adv, for respt.No.3
Mr. MF Quershi, Adv for respt.No.5 & 13.
Mr. HS Thangkhiew, Sr. Adv
Mr. N Mozika, Adv for respt.No. 6, 10, 14,
15, 17 18 and 22
Mr. S. Chakravarty, Sr.Adv
Ms. M Mahanta, Adv for respt.No.7, 8, 11
and 19
Mr. BK Das Adv for respt.No.9
Mrs. PDB Baruah, Adv for respt.No.12
Mr. L. Lyngdoh, Adv for respt.No.24
Mr. B. Bhattacharjee, Adv for respt.No.23
and 26
Mr. VGK Kynta, Sr.Adv
Mr. KK Khongjoh, Adv for respt.No.25 and
28.
Date of hearing : 25.08.2015
Date of Judgment & Order : 28.09.2015
JUDGMENT AND ORDER
(Justice T. Nandakumar Singh)
Shillong Town is on the slope of the hill. More than 90% of the
buildings are constructed on the adverse terrain i.e. higher hill slope and
buildings are highly unsaved in Shillong agglomeration area. Landslide is the
common feature in Shillong Town. Major portion of the hill in Shillong are
loose soil. Shillong Town is totally different from Guwahati city located at the
plain area. There are some multi-storied buildings in the plain areas of
Guwahati city; even then the Gauhati High Court in a number of cases had
directed to demolish the additional floors above the permitted floor. The
judgments of the Gauhati High Court for demolition of the additional floors
are being discussed in the later part of this judgment.
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2. Heard Mr. K Paul, learned counsel for the petitioners, Mr. ND
Chullai, learned Sr. GA assisted by Mr. S Sen Gupta, learned GA appearing
for the respondents No.1, 2 & 4, Mr. SP Mahanta, learned senior counsel
assisted by Ms. S Pde, learned counsel appearing for the respondent No.3,
Mr. S Muraka, learned counsel for the respondents No.5 & 12, Mr. HS
Thangkhiew, learned senior counsel assisted by Mr. N Mozika, learned
counsel for the respondents No.6, 10, 14, 15, 17, 18 & 22, Mr. KP
Bhattacharjee, learned counsel for the respondents No.7, 8, 11 & 19, Mr. BK
Das, learned counsel for the respondent No.9, Mr. L Lyngdoh, learned
counsel for the respondent No.24, Mr. B Bhattacharjee, learned counsel for
the respondents No.23 & 26 and Mr. VGK Kynta, senior counsel assisted by
Mr. KK Khongjoh, Adv for respt.No.25 and 28.
3. The State of Meghalaya has been placed at Zone-5 of the
seismic activity. In metrological parlance, Zone-5 area would be an area in
which the highest level of seismic activity is expected and inevitable. Zone-5
areas are likely to experience earthquakes which can be as high as 8/9 on
the Richter scale and above. We may remember the catastrophic result of
the recent earthquake at Kathmandu in the month of April/May, 2015. Nepal
falls in Zone-5 like the State of Meghalaya. All the places located in Zone-5
carry the tag of a Magnitude 8 earthquake. So the 7.9 Magnitude earthquake
that struck Nepal at Lamjung, 77 Km to the northwest of Kathmandu on April
25 only validated the seismic zoning. It will be seen that there are five
disconnected islands of Zone-5, occurring on the base of Zone-4, from
Kashmir to the northeastern states, all of which constitute the largest region
of Zone-5. In the last earthquake in Nepal which located in Zone-5, several
thousand persons were killed and several thousands buildings collapsed.
The magnitude of the earthquake was 7.9 on Richter scale. It is clear from
the last earthquake in Nepal which falls in seismic Zone-5 shows that the
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earthquake of 7.9. magnitude struck Nepal; so also the last earthquake in the
year 1897 in Meghalaya which fall in seismic Zone-5 like Nepal.
4. In 1897, there was an earthquake measuring 8.7 on the Richter
scale which shook Shillong resulting in about 1542 (one thousand five
hundred forty two) deaths. The situation then was one in which Shillong was
not the urban jungle that it is now. The Govt. of Meghalaya as well as the
Meghalaya Urban Development Authority (for short 'MUDA'), Shillong the
competent authority for granting permission for construction of building
admitted that State of Meghalaya falls in seismic Zone-5. Byelaw 2.45 of the
Meghalaya Building Byelaws, 2011 reads as follows:-
"2.45 Natural Hazard Prone Areas' - Means areas likely to
have moderate to high intensity of earthquake or cyclonic
storm, or significant flood flow or inundation or land slides/mud
flows/avalanches, or one or more of these hazards.
Note: Moderate to very high damage risk zones of
earthquakes are given as in Seismic Zones III, IV and V
specified in IS:1893; moderate to very high damage risk
zones of cyclones are those areas along the sea coast of
India prone to having wind velocities of 39 m/s or more
as specified in IS:875(Part 3;) and flood prone areas in
river plains (Unprotected and protected) are indicated in the
Flood Atlas of India prepared by the Central Water
Commission, besides, other areas can be flooded under
conditions of heavy intensity rains, inundation in
depressions, back flow in drains, inadequate drainage,
etc. as to be identified through local surveys in the
development plan of the area and landslide prone areas as
to be identified by State Government."
Bird's eye view of Shillong
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5. In such situation, one can imagine the catastrophic result of
the multi-storied buildings constructed on the hill slope of soft soil in
Shillong in the earthquake of magnitude of 8.7 i.e. earthquake measuring
8.7 of on the Richter scale like the one in 1897 resulting to deaths of about
1542 (one thousand five hundred forty two). The four practicing Advocates
of the High Court of Meghalaya and other subordinate courts filed the
present writ petition in the nature of PIL (i) for a direction to the respondents
No.1-4 to cancel the building permission/clearance issued in respect of the
multi-storied RCC buildings in and around Shillong city; (ii) for a direction to
the respondents No.1-4 to cause an enquiry and submit a detailed report for
the judicial satisfaction of this Court that all the buildings
constructed/erected in and around Shillong city have received due
permission/inspection and had been issued clearances and all
constructions made conform to the specifications, technical and otherwise
to "the Meghalaya Building Byelaws, 2011" and; (iii) to pass appropriate
order regulating/monitoring the construction of multi-storied RCC buildings
situated in and around Shillong city and also appropriate order/direction. It
is the case of the writ petitioners that the petitioners are practicing
Advocates permanently based at Shillong and practicing in the High Court
of Meghalaya and other subordinate courts. The petitioners have no
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personal interest (vested or otherwise) in filing the present Public Interest
Litigation (for short 'PIL') save and except the best interest of the public in
particular and the society in general. A large number of high rise
buildings/Reinforced Concrete Constructed (hereinafter referred to RCC for
brevity)/multi-storied buildings/sky scraper buildings have suddenly
emerged in and around the vicinity of Shillong city which is the capital of
Meghalaya. The State of Meghalaya has been placed at Zone-5 of the
seismic activity. The seismic activity of Zone-5 areas are likely to
experience earthquake which can be as high as 8/9 on the Richter scale
and above.
6. The earthquake of magnitude of 8.7 like the one in 1897 may
happen at any time. In case it so happens, the number of deaths will be
several thousands inasmuch as the multi-storied buildings are all
constructed at the hill slope or in the gradient of the hill slope of loose soil.
The emergence of multi-storied buildings within and around Shillong had
increased the risk of earthquakes and it is unimaginable as to how
respondents No.1-3 are still issuing building permissions/clearance
certificates for the construction of high rise buildings. The
construction/erection of high rise buildings/RCC/multi-storied buildings/sky
scraper buildings in and around Shillong city is controlled by the Meghalaya
Building Byelaws, 2011, and the MUDA i.e. respondent No.3 is to ensure
that the provisions contained in the Byelaws, 2011 are upheld and adhered
to in granting permissions for construction of buildings. Of late the rapid
emergence of high rise buildings/RCC/multi-storied buildings/sky scraper
buildings has lent fervor to the petitioner that due procedures and norms are
not being followed by the concerned authority in respect of the issuance of
clearance/permission including inspection etc. with respect to the
erection/construction of high rise buildings/RCC/multi-storied buildings/sky
scrapers buildings thereby creating an imminent risk of damage including
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human lives in the event of a tremor of substantial magnitude in and around
Shillong city. Moreover, Shillong city is a hill station and most of the houses
built in the past were Assam Type Houses; those houses even though they
are susceptible to tremors traversing through the area are less likely to
cause catastrophic damage in the event of an earthquake arising. It is not
the case of the petitioners that there should be construction of only Assam
Type House in Shillong city. Of late, Shillong city being swamped by high
rise buildings/RCC/multi-storied buildings/sky scraper buildings erected
even on an area which is a gradient is posing an inherent risk to the lives of
the inhabitants as well as the surrounding neighbours of such building are in
imminent danger of death in the unfortunate occurrence of an earthquake.
7. The petitioners further submit that the threat of inevitable
earthquakes (whether mild/strong) would lead to the collapse giving way of
weak and structurally unstable buildings that are in plenty in and around
Shillong area thereby leading to huge loss. Improper, irregular and
haphazard manner by which permission(s)/clearance(s) is/are issued in a
mechanical way for the construction of multi-storied buildings extended
beyond 3 (three) storeys in and around the hilly Shillong city/town-ship
warrants a serious look into the matter and an immediate intervention of this
Court for preventing the impending dangers that they bring forth. In the best
interest of general public at large, the petitioners had come before this
Court for a timely intervention in this matter before any unfortunate event
occurs. Many individuals are apprehensive of the upcoming urban jungle
that Shillong city is turning into but none till date had done anything to
question it. The petitioners out of a sense of duty and moral obligation have
garnered the strength to question the apparent lapses and laxities on the
part of the respondent authorities. An order from this Court stopping or
curbing the mindless and mechanical construction/erection of the multi-
storied buildings would potentially reduce the risk of loss of lives in the
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unfortunate event of any natural disaster. To provide for the development of
the towns and country sides of the State of Meghalaya on sound planning
principles with the object of securing proper sanitary conditions, to conserve
and promote the public health, safety and general welfare of the peoples
living therein, the Meghalaya Town and Country Planning Act, 1973 was
enacted and it extends to the whole of Meghalaya excluding the
Autonomous District Council.
8. The respondent No.3 i.e. MUDA, Shillong is the authority as
defined under Section 2(1) of the Meghalaya Town and Country Planning
Act, 1973 (for short' the said Planning Act, 1973') and has the power to
make byelaws under Section 74 of the said Planning Act, 1973. Section 74
of the said Planning Act, 1973 reads as follows:-
"74. Power of the Authority to make bye-laws. (1) The
Authority shall have power to make bye-laws in respect of the
matters enumerated under this section not inconsistent with
the rules made by the State Government:
(i) and sub-division and lay out of public street;
(ii) width for different classes of public streets according
to the nature of traffic to be carried thereon;
(iii) street lanes and setting back of buildings from the
regular line of the street;
(iv) zoning regulations prescribing the type or
description of building which may or may not be, and
the purpose for which a building may or may not be
erected, in any prescribed area or areas;
(v) regulation and display of advertisement in the
interest or amenity, aesthetic, or public safety;
(vi) regulations in any manner not specifically provided
for in this Act, the erection of any enclosure, wall,
fence, tent or the structure on any land within the limits
of the Authority;
(vii) a time and place and transaction of business of the
meeting of the Authority.
(2) The power to make bye-laws under this Act shall be
subject to the condition of previous publication.
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(3) No such bye-laws shall come into force until it is approved
by the State Government.
(4) The State Government may cancel their confirmation of
any such bye-law and thereupon the bye-law shall cease to
have effect.
NOTES
Clause (vi) was inserted vide Assam Act No. XXXII of 1962
published in the Assam Gazette, dated the 26 th November,
1962."
8.1. In exercise of the power conferred under Section 74 of the
said Planning Act, 1973, the respondent No.3 with the approval of the State
Govt. made the Byelaws called "the Meghalaya Building Byelaws, 2011" (for
short "Byelaws") which was notified vide Meghalaya Gazette Part-IIA dated
July 21, 2011. Byelaws which will be required to refer in deciding the
present writ petition are reproduced hereunder:-
1.1. Short title:- These byelaws may be called the Meghalaya
Building Byelaws, 2011.
2.7 'Basement or Cellar':- The lower storey of a building
which is minimum 2/3rd of the floor height below the finished
ground level.
***** ***** *****
***** ***** *****
***** ***** *****
f. Parking places and garages;
***** ***** *****
***** ***** *****
h. The basement shall not be used for living purposes.
However, use of a basement floor for living purpose or
functional use will be permitted provided the requirement of
proper lighting, ventilation and environmental conditions as
prescribed are complied.
i. The basement shall have the following requirements:
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(i) Every basement shall be in every part at least 2.4 m in
height from the floor to the underside of the roof slab or
ceiling.
***** ***** *****
***** ***** *****
(iv) Adequate arrangement shall be made such that surface
drainage does not enter the basement.
2.11 'Coverage':- Means the quotient obtained in the terms of
percentage by dividing the plinth areas of Ground floor by plot
area, i.e.
Coverage: Plinth area of the Ground floor x 100
Plot area
2.18 'Floor' Area Ratio' (F.A.R.):- The quotient obtained by
dividing the total covered area (plinth area) on all floors by the
area of a plot i.e.
F.A.R. - Total covered area of all floors
Plot area
2.19 'Ground Level':- Mean the finished surface after
formation cutting of the site from where erection of the building
starts.
2.22 HEIGHT OF FLOORS:-
Minimum height of floors in building at any point shall be 3.0
Mts.
Provided that in case of folded roof the minimum height of
3.0 Mts. shall be measured from the lowest point of the
fold.
Provided that in case of gabled or slopping roof the
minimum height below the lowest part of roof, shall not be
less than 2.2 Mts. and an average of the rooms shall not be
less than the minimum prescribed here above.
Provided further that in case of trussed-roof, the minimum
height shall be measured from the pavement to bottom of
the tie beam.
Provided that for verandah, Bathroom, W.C., passages,
puja room, store room, stair cabin, minimum height shall be
2.20 mts.
2.28 "Multi-storyed Building or High Rise Building" - A
building above 4 storeys, and/or a building exceeding 15
meters or more in height. However, chimneys, cooling
towers, boiler rooms/lift machine rooms, cold storage and
other non working areas in case of industrial buildings and
12
water tanks, and architectural features in respect of other
buildings may be permitted as a non high rise building.
Buildings less than 15 meters including
stilt/basement/parking floors stand excluded from the
definition of high rise buildings.
2.45 Natural Hazard Prone Areas' - Means areas likely
to have moderate to high intensity of earthquake or
cyclonic storm, or significant flood flow or inundation or
land slides/mud flows/avalanches, or one or more of these
hazards.
Note: Moderate to very high damage risk zones of
earthquakes are given as in Seismic Zones III, IV
and V specified in IS:1893; moderate to very high
damage risk zones of cyclones are those areas along
the sea coast of India prone to having wind
velocities of 39 m/s or more as specified in
IS:875(Part 3;) and flood prone areas in river plains
(Unprotected and protected) are indicated in the
Flood Atlas of India prepared by the Central Water
Commission, besides, other areas can be flooded
under conditions of heavy intensity rains, inundation
in depressions, back flow in drains, inadequate
drainage, etc. as to be identified through local
surveys in the development plan of the area and
landslide prone areas as to be identified by State
Government.
2.47 'Special Building' - Means those buildings with large
scale activities at a time such as Hotel of 4 star category
&above, Public Institutions, Hospitals, Shopping malls
with Multiplexes, I.C.T./ BPO's, Educational Institutions
having a minimum plot area of 6000 sq.m and a mininmum
plinth area of 3000 sq.m.
7. DEVIATION DURING BUILDING CONSTRUCTION
For any deviation from the sanctioned plan during stage of
construction, permission of the Authority shall be
obtained and if the construction is not according to the
approved plan, the Authority has the power to stop the
construction and if the permission holder fails to comply
with the notice served by the authority, the Authority is
empowered to cancel the building permission and start
proceeding against the permission holder as per
provisions of Meghalaya Town and Country Planning Act,
1973 as amended from time to time.
9. COMPLETION CERTIFICATE
On completion of the building, the applicant and the licensed
technical personnel as the case may be shall give notice to
the authority in prescribed form as given in Form V and V(A).
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10. OCCUPANCY CERTIFICATE
(i) Occupancy Certificate shall be mandatory for all buildings.
No person shall occupy or allow any other person to occupy
any building or part of a building for any purpose unless such
building has been granted an Occupancy Certificate by the
Authority.
(ii) The owner shall submit a notice of completion through the
supervising registered architect/licensed technical personnel
along with prescribed documents and plans to the Authority.
The Authority on receipt of such notice of completion shall
undertake inspection with regard to the following aspects:
(a) Number of floors
(b) External setbacks
(c) Parking space provision
(d) Abutting road width and shall communicate the approval or
refusal of the Occupancy Certificate within 15 days or may
issue the same after levying and collecting compounding fee, if
any.
(iii) For all high rise buildings, the work shall be subject to
inspection by the Fire Services Department and the Occupancy
Certificate shall be issued only after clearance from the Fire
Service Department with regard to Fire Safety and Protection
requirements.
(iv) The functional/line agencies dealing with electric power,
water supply, drainage and sewerage shall not give regular
connections to the building unless such Occupancy Certificate
is produced.
(v) The Municipal Authority shall register only the permitted built
up area as per the sanctioned building plan and only upon
producing and filing a copy of such sanctioned building plan.
On the Registration Document it should be clearly mentioned
that the registration is in accordance with the sanctioned
building plan in respect of setbacks and number of floors.
(vi) The financial agencies/institutions shall extend loan
facilities only to the permitted built up area as per the
sanctioned building plan.
11. OFFENCES AND PENALTIES
Any person who violates the building permission sanction
issued by the Authority or contravenes with the provisions of
the bye-laws or who interferes or obstruct any authorized
personnel in the discharge of his duties shall be guilty of an
offence. The Authority shall: -
(i) Punish the person by a fine as fixed by the Authority or as
per the Meghalaya Town and Country Planning Act, 1973.
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(ii) Take suitable action which may include demolition of un-
authorized works, sealing of premises, prosecution and criminal
proceeding against the offender, in pursuance of relevant laws
in force, as decided by the Authority.
(iii) Take suitable action against licensed technical
personnel and license may be withdrawn in case of an
offence as decided by the Authority.
a) The Authority reserves the right to take action and to
debar/blacklist the consultant/technical personnel, if found to
have deviated from professional conduct or to have made any
misstatement or on the account of misrepresentation of any
material fact or default either in authentication of a plan or in
the supervision of the construction against the building byelaws
and the sanctioned building plans.
b) If the Authority finds at any time any violation of the building
byelaws or misrepresentation of fact, or construction at
variance with the sanction or building byelaws, inclusive of the
prescribed documents, the Authority shall be entitled to revoke
the sanction and take appropriate action against such
professional and such professional shall not be authorized to
submit fresh plans till finalization of the case.
c) Before debarring or blacklisting a professional if found to
be indulging in professional misconduct or here she/he has
misrepresented any material fact as per (a) and (b) above,
the Authority shall give him a show cause notice with
personal hearing and shall pass an order to debar him/her
for submission and supervision of the construction with full
justification for the same. An appeal against this order shall
lie with the Appellate Authority.
18. REQUIREMENT OF SITES
Any piece of land shall be used as a site for construction
provided;
(i) The proposed use conforms to the Master Plan, Zonal
Plan under Meghalaya Town & Country Planning Act, 1973.
(ii) The site is properly drained or capable of being drained.
(iii) The site have proper means of access.
(iv) The site is not prone to land slide.
(v) Generally, no earth cutting shall be permitted in order to
achieve more no. of basements and all building proposals
shall follow the slope profile of the plot and such earth
cutting shall be limited to a maximum of 3.00 meters only.
However the Authority may relax the same owing to site
conditions and the maximum earth cutting height shall be
upto the crest of the RCC wall being limited to 6.00 m only.
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NO LAND SHALL BE USED AS A SITE FOR THE
CONSTRUCTION OF BUILDING-
(i) If the site is found to be liable to liquefaction as per soil
survey report under the earthquake intensity of the area, except
where appropriate protection measures are taken.
(ii) If the Authority finds that the proposed development
falls in the area liable to flooding, except where protection
measures are adopted to prevent flooding damage.
20. EXTERIOR OPEN SPACE
The building envelop shall be governed by the following
minimum clear open space and setbacks:-
(I) Front setback
(a) Every building abutting a street/footpath shall have a
front setback with a minimum width of 3 meters from the
front property line to the front building envelop.
(b) In case the site fronts on two streets, both of which are
major roads, then the front setback shall be a minimum of
3.00 m from the edge of both the roads' right of way.
(c) In case the plot fronts two streets, one of which is a
major road and the other a minor road but having the
potential of being developed into a major road and or
leading to an attraction zone(s), then the front setback shall
be a minimum of 3.00 m from the edge of both roads' right
of way.
(II) Side and Rear setback
Every building shall have a minimum clear side and rear
setback as prescribed in these byelaws. No use is
permitted in this open space except steps and soak pit or
in case this space is 3.00 m wherein parking of vehicles is
allowed.
29. Seismic Strengthening/Retrofitting:
Prior to seismic strengthening/retrofitting of any existing
structure, evaluation of the existing structure as regards
vulnerability in the specified wind/seismic hazard zone shall
be carried out by a Registered Structural
Engineer/Registered Structural Design Agency. If as per the
evaluation of the Registered Structural Engineer/Registered
Structural Design Agency, the seismic resistance is
assessed to be less than the specified minimum seismic
resistance as given in the note below, action will be initiated
to carry out the upgrading of the seismic resistance of the
building as per applicable standard guidelines.
Note: (a) for masonry buildings reference is to be made to
IS:4326 and IS: 13935 and (b) for concrete buildings and
structures reference to be made to BIS code on evaluation
and seismic strengthening for retrofitting of RCC buildings
under preparation at present.
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30. Review of Structural Design:
(i) The Competent Authority shall create a Structural
Design Review Panel (SDRP) consisting of Senior
Structural Design Engineers on Record and Structural
Design Agencies on Record, whose task will be to review
and certify the design prepared by Structural Engineer on
Record or Structural Design Agency on Record whenever
referred by the competent authority.
(ii) The Reviewing Agency shall submit addendum to the
certificate or a new certificate in case of subsequent
changes in structural design.
(iii) Table-VI Gives requirements of SDRP for structures of
different complexities.
TABLE-VI
PROOF CHECKING REQUIREMENTS FOR
STRUCTURAL DESIGN
Sl. TYPE OF STRUCTURE SUBMISSION FROM SER OR TO BE PROOF-
No. SDAR
1 HIGHRISE BUILDING, BUILDINGS SDBR* TO BE CHECKED
2
ABOVE 2000M PLINTH AREA AND Preliminary design TO BE CHECKED
MORE THAN GROUND + 3 Structural design/drawings TO BE CHECKED
(RCC/STEEL FRAME STRUCTURE)
2 PUBLIC BUILDINGS WITH MORE SDBR* TO BE CHECKED
THAN 1000 M2 PLINTH AREA Preliminary design TO BE CHECKED
GROUND + 3 AND ABOVE Structural design/drawings TO BE CHECKED
3 A. SPECIAL STRUCTURES SDBR* TO BE CHECKED
B. SPECIAL BUILDINGS Preliminary design TO BE CHECKED
Structural design/drawings TO BE CHECKED
CHECKED
*SDPR - STRUCTURAL DESIGN BASIS REPORT
Notes:
• Public building means assembly of large number of
people including schools, hospitals, courts etc
• Special structure means large span structures such as
stadium, assembly halls, or tall structures such as water
tanks, TV tower, chimney, etc. and the requirement by
the Competent Authority for third party verification will
depend on the type of structure.
40. The specific Floor Area Ratio and Plot Coverage
stipulations shall be as per Table VIII below.
TABLE VIII
FLOOR AREA RATIO & MAXIMUM COVERAGE
Sl. Type of Maximum Maximum Maximum Maximum Height
No. Occupancy permissible permissible Floor permissible (In
(F.A.R) (coverage permissible meters)
percentage (excluding
of plot area) basement)
1. 2. 3. 4. 5 6
1. Residential 2.0 50% 4 15 mts
Bungalow RRRR) With ground floor
parking 19 mts.
17
2. Residential 2.0 50% 4 15 mts
Apartment With ground floor
parking 19 mts
3 Institutional 1.5 40% 4 15 mts
With ground floor
parking 19 mts
4 Mercantile 2.0 60% 4 15 mts
(Commercial) With ground floor
parking 19 mts
5 Public or Semi- 2.0 50% 4 15 mts
Public Business With ground floor
parking 19 mts
6 Assembly 1.5 40% 4 15 mts
With ground floor
parking 19 mts
7 Industrial 1.5 40% 3 12 mts
With ground floor
parking 16 mts.
8 Storage 2.0 70% 3 12 mts
With ground floor
parking 16 mts
9 Hazardous 1.2 25% 2 8 mts
with ground floor
parking 12 mts.
Special Buildings 3.0 50% 6 23 mts
10 with ground floor
parking 27 mts.
11 Industrial 1.0 40% As per
Zone functional
(factory) requirement.
Note 1:- If the Ground Floor is exclusively earmarked for
Covered Parking purposes, an additional floor with height
as indicated above shall be permitted and the Ground
Floor covered parking will not be counted for F.A.R.
Note 2:- Mumty (stair cover) over staircase on top floor,
atrium/cut outs Machine room for lift on top floor as
required for the lift machine room installations shall not be
taken for FAR calculations. Lift shaft (s) for one floor only
shall be taken for FAR calculation.
Note 3:- Rockery, well and well structures, plant, nursery,
water-pool. Swimming pool (if uncovered), platform
around a tree, water tank; fountain, bench, ramps,
compound, wall, gate, slide, steps outside building,
domestic washing place, swing, fire escape staircase,
overhead water tank on top of buildings, underground
suction tank having roof slab 0.50 mtr. above ground level,
cooling tower of A.C. plant rest above the top roof slab and
Drainage culvert, conduit, catch-pit, chamber, gutter,
culvert on drains shall not be taken for FAR calculations.
43. REQUIREMENTS FOR HIGH RISE BUILDINGS
(i) The building requirements and standards other than heights
and setbacks specified in the National Building Code of India,
2005 shall be complied with.
(ii) Such buildings shall be undertaken by owners by
18
engaging registered architects/ licensed technical
personnel/builders/developers. The designs and building plans
shall be countersigned by the owner, licensed developer,
registered architect, licensed technical personnel who shall be
responsible for the supervision, structural safety, earthquake
safety, fire safety and specifications compliance of such
buildings. Buildings shall be designed for compliance with
earth quake resistance and resisting other natural hazards.
The Completion Certificate shall mention that the norms have
been followed in the design and construction of buildings for
making the buildings resistant to earthquake, compliance with
structural safety and fire safety requirements.
(iii) The work of the building services like sanitation, plumbing,
fire safety requirements, lifts, electrical installations, and other
utility services shall be executed under the planning, design
and supervision of qualified and competent technical
personnel.
(iv) The parking requirements shall comply as given in these
byelaws. The parking facilities and vehicles driveways etc.
shall be maintained to the satisfaction of the Authority.
(v) Provide for rain water harvesting/ recycling of waste water
in the building.
(vi) All public & private buildings used by the public shall be
designed and constructed to provide facilities to the persons
with disabilities as prescribed in the National Building Code of
India, 2005 & Section E of Meghalaya Building Bye Laws
2011.
(vii) In all buildings irrespective of above height provisions, the
requirements of parts of the building like size and area
requirements of habitable rooms, kitchen, bathrooms and
Water closets, other areas, corridor and staircase widths,
service ducts, etc. shall conform to the National Building Code
of India,2005."
9. The writ petition was moved on 11.04.2014. Mr. K Paul,
learned counsel for the petitioner contended that many private buildings
more than G+3 are being constructed in the different parts of Shillong city.
Mr. SP Mahanta, learned senior counsel appearing for the respondent No.3
(MUDA) stated that special permissions had been granted to some of the
Govt. buildings such as Hospital and others. It is the further submission of
Mr. SP Mahanta, learned senior counsel for the respondent No.3 that only
high rise private buildings having above 2000m plinth or more had been
19
granted permission for three storeys i.e. G+3. Special Building is defined
under Byelaw 2.47 of the Meghalaya Building Byelaws, 2011 and Special
Building means those buildings with large scale activities at a time such as
Hotel of 4 Star category and above, Public Institutions, Hospitals, Shopping
Malls with Multiplexes, I.C.T./B.P.O's, Educational Institutions having a
minimum plot area of 6000 sq.m and a minimum plinth area of 3000 sq.m.
This Court passed an order dated 11.04.2014 that the place and area which
had been placed at Zone-5 of seismic activity is a very high damage risk
earthquake area and as an interim measure, the private buildings under
construction rising more than G+3 shall not go for further construction in
Shillong city till the returnable date. The respondent No.3 is directed to
implement the interim order immediately. For easy reference, the said order
of this Court dated 11.04.2014 is quoted hereunder:-
"11.04.2014
(T.N.K. Singh,J)
Heard Mr. K Paul, learned counsel for the petitioner and Mr. ND
Chullai, learned Sr. GA assisted by Mrs. NG Shylla, learned GA
appearing for the respondents No.1, 2 & 4. Also heard Mr. SP
Mahanta, learned counsel for the respondent No.3.
In this writ petition in the form of PIL, a matter of public
importance is involved inasmuch as, by this writ petition,
questioning the constructions of multistoried R.C.C. buildings in
the Shillong city which is placed at Zone-5 of the seismic
activity. In metrological parlance, a Zone-5 area would be an
area in which the highest level of seismic activity is expected
and inevitable.
Note to 2.45 of the Meghalaya Building Bye Law, 2011
read as follows:-
"Note: Moderate to very high damage risk zones of
earthquakes are given as in Seismic Zones III, IV and V
specified in IS:1893; moderate to very high damage risk
zones of cyclones are those areas along the sea coast
of India prone to having wind velocities of 39 m/s or
more as specified in IS:875 (Part 3;) and flood prone
areas in river plains (Unprotected and protected) are
indicated in the Flood Atlas of India prepared by the
Central Water Commission, besides, other areas can be
flooded under conditions of heavy intensity rains,
inundation in depressions, back flow in drains,
20
inadequate drainage, etc. as to be identified through
local surveys in the development plan of the area and
landslide prone areas as to be identified by State
Government."
Meghalaya Urban Development Authority admitted in the said
note that very high damage risk zones of earthquake are as
given in seismic Zones III, IV and V as specified in IS:1893.
Therefore, it appears that Shillong city had been placed in
Zone-5 of the seismic activity which is a very high damage risk
zones of earthquake. It is also stated in the writ petition that in
the year 1897, an earthquake measuring 8.7 on the Richter
scale had shook the whole plateau of Shillong resulting in about
1,542 deaths. It may be noted that Shillong in the year 1897 is
the Shillong where there was no concrete jungle but now,
Shillong, because of uncontrolled high rise buildings is concrete
jungle. Bye Laws 18 of the Meghalaya Building Bye Laws, 2011
read as follows:-
"18. REQUIREMENT OF SITES
Any piece of land shall be used as a site for construction
provided;
(i) The proposed use conforms to the Master Plan, Zonal
Plan under Meghalaya Town & Country Planning Act,
1973.
(ii)The site is properly drained or capable of being
drained.
(iii) The site have proper means of access.
(iv) The site is not prone to land slide.
(v) Generally, no earth cutting shall be permitted in
order to achieve more no. of basements and all
building proposals shall follow the slope profile of
the plot and such earth cutting shall be limited to
a maximum of 3.00m meters only. However, the
Authority may relax the same owing to site
conditions and the maximum earth cutting heights
shall be upto the crest of the RCC wall being
limited to 6.00 m only.
NO LAND SHALL BE USED AS A SITE FOR THE
CONSTRUCTION OF BUILDING-
(i) If the site is found to be liable to liquefaction as per
soil survey report under the earthquake intensity of the
area, except of the area, except where appropriate
protection measures are taken.
(ii) If the Authority finds that the proposed development
falls in the area liable to flooding, except where
protection measures are adopted to prevent flooding
damage."
On bare perusal of Bye Laws 18(v), it appears that generally no
earth cutting shall be permitted in order to achieve more
number of basements and all buildings proposals shall follow
21
the slope profile of the plot and such earth cutting shall be
limited to a maximum of 3.00 meters only. Bye Laws 30 of the
Meghalaya Building Bye Law, 2011 read as follows:-
"30. Review of Structural Design:
(i)The Competent Authority shall create a Structural
Design Review Panel (SDRP) consisting of Senior
Structural Design Engineers on Record and Structural
Design Agencies on Record, whose task will be to
review and certify the design prepared by Structural
Engineer on Record or Structural Design Agency on
Record whenever referred by the competent authority.
(ii)The Reviewing Agency shall submit addendum to
the certificate or a new certificate in case of
subsequent changes in structural design
(iv)Table-VI Gives requirements of SDRP for
structures of different complexities.
TABLE-VI
PROOF CHECKING REQUIREMENTS FOR STRUCTURAL DESING
Sl. TYPE OF STRUCTURE SUBMISSION FROM TO BE PROOF-
No SER OR SDAR CHECKED
.
2 1 HIGHRISE BUILDING ABOVE 2000M SDBR* TO BE CHECKED PLINTH AREA AND MORE THAN GROUND + 3 (RCC/STEEL FRAME STRUCTURE. Preliminary design TO BE CHECKED Structural TO BE CHECKED design/drawings 2 PUBLIC BUILDING WITH MORE THAN Preliminary design TO BE CHECKED 2 1000M PLINTH AREA GROUND + 3 AND ABOVE Structural TO BE CHECKED design/drawings 3 A. SPECIAL STRUCTURES SDBR* TO BE CHECKED B. SPECIAL BUILDINGS Preliminary design TO BE CHECKED Structural TO BE CHECKED design/drawings Notes:
Public building means assembly or large number of people including schools, hospitals, courts etc. (emphasis supplied) Special structure means large span structures such as stadium, assembly halls, or tall structures such as water tanks, TV tower, 22 Chimney, etc. and the requirement by the Competent Authority for third party verification will depend on the type of structure."
On perusal of the Table-VI of the Bye Laws 30, it appears that that only high rise private building above 2000m plinth area and more than ground + 3 and above are permissible. Mr. K Paul, learned counsel for the petitioner contended that many private buildings more than G+3 are being constructed in different parts of Shillong city. Mr. SP Mahanta, learned counsel for the respondent No.3 stated that special permissions have been granted to some of the Govt. buildings such as Hospitals and others. This Court may accept for the time being that MUDA had granted special permission to some of the Govt. buildings. But the question put to Mr. SP Mahanta, learned counsel for the respondent No.3 is "for what reason and under what circumstances, the permissions have been granted to the private buildings, which are under construction, for rising up more than G+3?" Mr. SP Mahanta, fairly submits that without any instruction, he may not be able to answer this question. Issue Notice returnable within four weeks. No formal notice needs be issued as the respondents have already entered appearance through their respective counsel. However, taking into consideration of the public importance involves in this writ petition and also of the facts that the State of Meghalaya has been placed under Zone-5 of the seismic activity and also that the MUDA had admitted in their Bye Laws, 2011 that the place and area which had been placed at Zone-5 of the seismic activity is a very high damage risk earthquake area and also on perusal of the Meghalaya Building Bye Laws, 2011, it appears that an interim order is called for. In the interim, it is provided that the private buildings under construction rising more than G+3 shall not go for further construction in Shillong city till the returnable date. The respondent No.3 is directed to implement this interim order with immediate effect.
However, liberty is granted to the respondents to file an application for modification/alteration or cancellation of the interim order.
The Registry is directed to furnish a copy of this order to the learned counsel appearing for the parties in the course of the day."
10. The respondent No.1 as well as respondent No.3 filed their respective affidavits-in-opposition. The respondent No.3 filed two affidavits-
in-opposition i.e. (i) affidavit-in-opposition dated 28.07.2014 and (ii) additional affidavit-in-opposition dated 03.09.2014. It is stated in the affidavit-in- opposition filed by the respondent No.3, in categorical terms that after the interim order dated 11.04.2014, the respondent No.3-MUDA, Shillong has 23 not issued a single permit above G+3 and also where building permits had been issued prior to the issuance of the interim order dated 11.04.2014 for more than G+3, the ongoing construction is allowed only within G+3. It is also stated in the affidavit-in-opposition filed by respondent No.3 that immediately after the interim order dated 11.04.2014, notices common to all the ongoing construction had been issued to stop the construction beyond permissible limit i.e. G+3. The respondent No.1 in his affidavit-in-opposition clearly stated vide para 14 of the affidavit-in-opposition that the operation of the Meghalaya Building Byelaws, 2011 extends to the entire Master Plan Area of Shillong. The respondent No.3 in his affidavit-in-opposition dated 28.07.2014 stated that with a higher rate of the number of taller buildings coming up in the agglomeration area, and in the absence of the enforcement of the Meghalaya Building Byelaws, 2011, besides the comparatively adverse terrain (higher slopes), the buildings are highly unsafe in the Shillong agglomeration area. These vulnerabilities and shortcomings will lead to heavy casualties in the agglomeration area, in times of disastrous occurrence like earthquake and landslides which is aggravated by the absence of sufficient lifeline building and infrastructure. The overall effect is the post-disaster overburdening of the lifeline buildings and infrastructure in the Municipal area with chaotic and unmanageable scenario resulting to heavy casualties. The respondent No.3 in his affidavit-in-opposition dated 03.09.2014 (additional affidavit) stated that the respondent No.3-MUDA, Shillong issued order to all the owners of the ongoing construction of buildings to stop any construction beyond G+3 and receipt of the same had been obtained by the office of the respondent No.3- MUDA, Shillong. After the interim order of this Court dated 11.04.2014, the respondent No.3-MUDA, Shillong had not issued a single permit for buildings above G+3 and also that for the building permits had been issued by respondent No.3-MUDA, Shillong prior to the issuance of the interim order of this Court dated 11.04.2014, constructions are allowed only within G+3 floors.
24
11. This Court passed an order dated 11.08.2014 in the present writ petition granting liberty to respondent No.3-MUDA, Shillong to take up steps even to the extent of sealing of the high rise buildings, construction of which are going on in violation of the interim order dated 11.04.2014. This case was listed again on 04.09.2014, on that day, the learned counsel for the petitioners strenuously contended that he had been apprised thoroughly that inspite of the interim order dated 11.04.2014 and also order dated 11.08.2014 for sealing buildings above G+3, the construction is still going on. The said submission was not accepted by Mr. SP Mahanta, learned senior counsel for the respondent No.3. In this factual backdrop, this Court passed the order dated 04.09.2014 for constitution of the Committee consisting of:-
(1) Learned Deputy Commissioner/In-charge Deputy Commissioner, East Khasi Hills District, Shillong - Chairman, (2) Mr. B Dutta, Director of Urban Affairs Department, Meghalaya, Shillong - Member, (3) Secretary, MUDA, Shillong - Member, (4) Mr. Toki Blah - Member, (5) Mr. JM Thangkhiew (one of the petitioner) - Member, (6) Mr. SP Mahanta, learned Sr.Adv (for resptd.No.3) - Member, (7) Mr. ND Chullai, learned Sr.Adv/Sr.GA for the Govt. - Member and (8) Mr. K Paul, learned counsel for the petitioner -
Member for conducting the enquiry for the terms and reference mentioned therein and the Committee shall submit a report within three weeks from the date of passing the order. After receiving the report from the Committee, the Court may take up necessary steps including directions, if necessary, to the authority to demolish the buildings after hearing the owners of the buildings concerned. The said order of this Court dated 04.09.2014 reads as follows:-
"04.09.2014 (T.N.K. Singh,J) The Govt. respondent i.e. the respondent No.1 also filed affidavit-in-opposition wherein, it is stated that the Ministry of Urban Development, Govt. of India had constituted an Expert Group headed by Prof. Dr. Anand S. Arya, Prof. Emeritus, 25 University of Roorkee, and other expert members during 1999. The main objective of Expert Group was on natural disaster prevention, preparedness and mitigation having bearing on housing and related infrastructures. This Expert Group had prepared the Vulnerability Atlas of India with respect to earthquake, cyclones and floods. It is also further stated in the affidavit-in-opposition filed by the respondent No.1, that the report of the Expert Committee was examined by a Committee setup by the Revenue & Disaster Management Department, Govt. of Meghalaya and many of the recommendations more particularly on structural design were duly incorporated in the Meghalaya Building Bye Laws which was re-notified in 2011. It is also stated that the height of building is guided by the provisions of the Meghalaya Building Bye Laws, which amongst different aspects depends on the permissible Floor Area Ratio, permissible height and plot coverage. The Floor Area Ratio and Maximum Coverage under Building Bye Laws, 2011 is also annexed as Annexure-1 to the affidavit-in-opposition filed by the respondent No.1. In that Floor Area Ratio (Annexure-1 to the affidavit-in-opposition filed by the respondent No.1), height limit is 42 feet.
Mr. SP Mahanta, learned senior counsel assisted by Ms. I Lyngwa, learned counsel for the respondent No.3 by referring to the affidavit-in-opposition filed by the respondent No.3, clearly stated that the permissions for constructions of buildings were granted by the Meghalaya Urban Development Authority (for short 'MUDA'), Shillong in strict compliance with the Meghalaya Building Bye Laws, 2011. It is also stated categorically in the affidavit-in-opposition that the MUDA had granted permissions for constructions of buildings to the private individuals only to the extent of G+3. This Court also passed an interim order dated 11.04.2014, operative portion of which reads as follows:-
"However, taking into consideration of the public importance involves in this writ petition and also of the facts that the State of Meghalaya has been placed under Zone-5 of the seismic activity and also that the MUDA had admitted in their Bye Laws, 2011 that the place and area which had been placed at Zone-5 of the seismic activity is a very high damage risk earthquake area and also on perusal of the Meghalaya Building Bye Laws, 2011, it appears that an interim order is called for. In the interim, it is provided that the private buildings under construction rising more than G+3 shall not go for further construction above the G+3 in Shillong city till the returnable date. The respondent No.3 is directed to implement this interim order with immediate effect."
The respondent No.3 had filed two affidavits i.e. an affidavit-in- opposition dated 28.07.2014 and an additional affidavit dated 03.09.2014. In those two affidavits, the respondent No.3 in categorical terms stated that after the interim order dated 11.04.2014, the MUDA, Shillong has not issued a single permit above G+3 and also buildings where building permit had been issued by the MUDA, Shillong prior to the issuance of the Court's interim order for more than G+3 floors, ongoing construction is allowed only within G+3 floors. It is also stated in the affidavit-in-opposition filed by the respondent No.3 that 26 immediately after the interim order dated 11.04.2014, notices common to all ongoing constructions had been issued to stop the constructions beyond permissible limit. In para 9 of the additional affidavit filed by the respondent No.3 dated 03.09.2014, it is stated that 56 owners of the ongoing constructions buildings had been served with the copy of the interim order and they are i.e. 56 numbers who have violated the order and the excess floor had been sealed with the help of the Magistrates and Police.
Mr. K Paul, learned counsel for the petitioner strenuously contended that he had been apprised thoroughly that inspite of the interim order dated 11.04.2014 and also the sealing of excess buildings i.e. buildings above G+3 by the MUDA, Shillong, the construction is still going on. This submission is not accepted by Mr. SP Mahanta, learned senior counsel appearing for the respondent No.3. Therefore, we are of the considered view that a Committee is required to be constituted for ascertaining the correct fact. We also require to mention the relevant portions of the Meghalaya Building Bye Laws, 2011. Bye Law 7 of the Meghalaya Building Bye laws, 2011, has given the power to the authority to stop the construction if the construction is not according to the approved plan and also the authority has the power to cancel the building permission. Bye Law 11 of the Meghalaya Building Bye laws, 2011, clearly provides that suitable action may be taken up by the authority i.e. to demolish the unauthorized works, sealing of premises, prosecution and criminal proceeding against the offender, in pursuance of relevant laws in force, as decided by the authority. The Meghalaya Town & Country Planning Act, 1973, contains the provisions under which the unauthorized buildings i.e. buildings constructed in violation of the permission granted by the concerned authority can be demolished by the authority i.e. MUDA, Shillong.
In the above factual backdrop, the Committee consisting of:-
(1) Learned Deputy Commissioner/In-charge Deputy Commissioner, East Khasi Hills District, Shillong - Chairman.
(2) Mr. B Dutta, Director of Urban Affairs Department, Meghalaya, Shillong - Member.
(3) Secretary, MUDA, Shillong - Member.
(4) Mr. Toki Blah - Member.
(5) Mr. JM Thangkhiew (one of the petitioner) - Member.
(6) Mr. SP Mahanta, learned Sr.Adv (for resptd.No.3) -
Member.
(7) Mr. ND Chullai, learned Sr.Adv/Sr.GA for the Govt. -
Member.
(8) Mr. K Paul, learned counsel for the petitioner - Member,
is constituted for conducting the enquiry for the following terms of reference:-
(i) How many of the high rise buildings, which are now under constructions, are constructing in strict compliance with the permissions granted by the authority;
(ii) If there be any violation of the permissions granted by the authority in the ongoing constructions, necessary steps should be taken up by resorting to the provisions 27 under the Meghalaya Town & Country Planning Act, 1973 and also the Meghalaya Building Bye Laws, 2011 i.e. by immediately sealing the unauthorized part of constructions with the help and assistance of the concerned authority i.e. the Deputy Commissioner/In-
Charge Deputy Commissioner/Chairman he/she and the concerned Superintendent of Police;
(iii) If necessary, criminal proceeding shall also be taken against the owners, who had constructed the buildings in violation to the permissions granted to them.
The Committee shall submit a detailed report within three weeks from today. After receiving the report from the Committee, the Court may take up necessary steps including directions, if necessary, to the authority to demolish the buildings after hearing the owners of the buildings concerned. The Registry is directed to furnish a copy of this order in the course of the day to all the members of the Committee mentioned above, if necessary, by sending a Special Messenger."
12. The said Committee constituted under the order of this Court dated 04.09.2014 after conducting the enquiry by visiting the spot submitted the report dated 16.10.2014, that during the course of inspection, 12 (twelve) buildings were detected to have violated the permissions granted by the respondent No.3-MUDA, Shillong, they are:
i) Shri. Narayan Prasad Jhunjhunwala at Police Bazar- Respondent No.5
ii) Shri. Nilesh Tiberwalla at Thana Road-Respondent No.6
iii) Shri. Satyabrato Baidya at Jail Road-Respondent No.7
iv) Shri. Ajit Das Gupta at Jail Road-Respondent No.8
v) Shri. Bidur Das at Jail Road-Respondent No.9
vi) Shri. Uday N. Shukla at Oakland Road-Respondent No.10
vii) Shri. Rajkumari Sinha at Bivar Road-Respondent No.11
viii) M/S Mentok Ri-Project Pvt.Ltd at Bivar Road-Respondent No.12
ix) Shri. Maruf Elahi at Bivar Road-Respondent No.13
x) Smti. Beroline Khongshei at Laban-Respondent No.14
xi) Shri. Mohendro Rapsang at Keating Road-Respondent No.15
xii) Smti. Saini Pala at Motinagar-Respondent No.16.28
The detailed findings and remarks of the Committee are also recorded in Annexure-II to the report dated 16.10.2014. For easy reference the relevant portion of the report dated 16.10.2014 i.e. Paras 6, 7 and also Annexure-II to the report dated 16.10.2014 are quoted hereunder:-
"6. During the course of inspection, 12 (twelve) buildings were detected to have violated the permissions granted by MUDA. They are:
i) Shri. Narayan Prasad Jhunjhunwala at Police Bazar- Respondent No.5
ii) Shri. Nilesh Tiberwalla at Thana Road-Respondent No.6
iii) Shri. Satyabrato Baidya at Jail Road-Respondent No.7
iv) Shri. Ajit Das Gupta at Jail Road-Respondent No.8
v) Shri. Bidur Das at Jail Road-Respondent No.9
vi) Shri. Uday N. Shukla at Oakland Road-Respondent No.10
vii) Shri. Rajkumari Sinha at Bivar Road-Respondent No.11
viii) M/S Mentok Ri-Project Pvt.Ltd at Bivar Road-Respondent No.12
ix) Shri. Maruf Elahi at Bivar Road-Respondent No.13
x) Smti. Beroline Khongshei at Laban-Respondent No.14
xi) Shri. Mohendro Rapsang at Keating Road-Respondent No.15
xii) Smti. Saini Pala at Motinagar-Respondent No.16.
7. Detailed Findings and Remarks of the Committee are recorded in the Annexure-II submitted to the Hon'ble High Court of Meghalaya.
Sd/- Sd/-
Shri. Cyril V.D. Diengdoh, Shri. B. Dutta,
Deputy Commissioner i/c East Director of Urban
Khasi Hills, Shillong-Chairman Affairs Department
Meghalaya, Shillong-Member
Sd/- Sd/-
Shri. E.Kharmalki, Shri. N.D. Chullai,
Secretary, MUDA Sr.Adv/Sr.GA for the Government
Shillong-Member Member
Sd/- Sd/-
Shri. S.P. Mahanta, Shri. J.M. Thangkhiew
Sr. Advocate for the respondent No.3/MUDA Advocate (one of the
Petitioners)-Member
29
Sd/- Sd/-
Shri. K Paul, Shri. Toki Blah,
Counsel of the Member
Petitioner-Member
Notice issued to the House Owners of Building beyond Ground plus 3 (three) th Date & time of inspection: 17 September, 2014 from 3:00 P.M. onwards Sl. Name Location Approved No. Remarks No. No. of Floors of as per MUDA floors permissions at site
1. ****** ****** ****** ****** ******
2. ****** ****** ****** ****** ******
9. Shri.Narayan Prasad Police G+3 G+5 Committee observed Jhunjhunwalla Bazar that 2 additional floors Respondent No.5 has been constructed beyond what was permitted. Hence violation by 2 floors
10. Nilesh Tiberwalla Thana G+3 G+5 Committee observed Respondent No.6 Road that from Quinton Road side six floors have been constructed whereas from Thana Road side four floors have been constructed, hence the Committee felt that 2 floors from Quinton road side is beyond what was permitted and therefore is a violation
11. ****** ****** ****** ****** ******
12. Satyabrato Baidya Jail Road G+3 G+4 Committee observed Respondent No.7 that an additional floor beyond what was permitted has been constructed. Hence, violations by one floor.
13. ****** ****** ****** ****** ******
14. Shri.Ajit Das Gupta Jail Road G+3 G+4 Committee observed Respondent No.8 that an additional floor beyond what was permitted has been constructed. Hence, violation by one floor.
15. ****** ****** ****** ****** ******
16. Shri.Bidur Das Jail Road G+3 G+4 Committee observed Respondent No.9 that slabs on some panels had been casted th over the 4 floor, beyond the permitted level. Hence part violation.
Sd/- Sd/-
Shri. Cyril V.D. Diengdoh, Shri. B. Dutta,
Deputy Commissioner i/c East Director of Urban
Khasi Hills, Shillong-Chairman Affairs Department
Meghalaya, Shillong-Member
30
Sd/- Sd/-
Shri. E.Kharmalki, Shri. N.D. Chullai,
Secretary, MUDA Sr.Adv/Sr.GA for the Government
Shillong-Member Member
Sd/- Sd/-
Shri. S.P. Mahanta, Shri. J.M. Thangkhiew
Sr. Advocate for the respondent No.3/MUDA Advocate (one of the
Petitioners)-Member
Sd/- Sd/-
Shri. K Paul, Shri. Toki Blah,
Counsel of the Member
Petitioner-Member
Notice issued to the House Owners of Building beyond Ground plus 3 (three) th Date & time of inspection: 18 September, 2014 from 10:00 A.M. onwards Sl. Name Location Approved No. No. of floors Remarks No. of Floors as at site per MUDA permissions
1. ****** ****** ****** ****** ******
2. Shri.Uday Oakland G+3 G+4 Committee observed N.Shukla that an additional floor Respondent has been constructed No.10 at both the levels, beyond what was permitted. Hence violation by one floor at both levels of the building.
3. Rajkumari Bivar Road G+3 G+4 Committee observed Sinha that an additional floor Respondent has been constructed No.11 partly beyond what was permitted. Hence part violation by one floor.
4. M/s Mentok Bivar Road Block A-G+3 Block A-G+4 Block A-violation by Ri-Project Block B-G+3 Block B-G+4 one floor, Block B- Pvt.Ltd. Block C-G+3 Block C-G+4 violation by one floor, Respondent and one non- and one non- Block C-violation by No.12 habitable habitable one floor, Block D-
floor Block D- floor Block D- violation by one floor.
G+3 Block G+4 Block Sealed at three points
E&F-STP E&F-STP as per interim order of
and G+3 and two the Hon'ble High Court
floors floors of Meghalaya
5. ****** ****** ****** ****** ******
6. Shri.Maruf Bivar Road G+4 G+5 Committee observed
Elahi that an additional floor
Respondent has been constructed
No.13 beyond what was
permitted. Hence
violation by one.
Sd/- Sd/-
Shri. Cyril V.D. Diengdoh, Shri. B. Dutta,
Deputy Commissioner i/c East Director of Urban
Khasi Hills, Shillong-Chairman Affairs Department
Meghalaya, Shillong-Member
31
Sd/- Sd/-
Shri. E.Kharmalki, Shri. N.D. Chullai,
Secretary, MUDA Sr.Adv/Sr.GA for the Government
Shillong-Member Member
Sd/- Sd/-
Shri. S.P. Mahanta, Shri. J.M. Thangkhiew
Sr. Advocate for the respondent No.3/MUDA Advocate (one of the
Petitioners)-Member
Sd/- Sd/-
Shri. K Paul, Shri. Toki Blah,
Counsel of the Member
Petitioner-Member
Notice issued to the House Owners of Building beyond Ground plus 3 (three) th Date & time of inspection: 19 September, 2014 from 10:00 A.M. onwards Sl. Name Location Approved No. No. of floors Remarks No. of Floors as at site per MUDA permissions
1. Smti.Beroline Laban G+3 G+4 Committee observed Khongshei that one floor has been Respondent constructed beyond No.14 what was permitted.
Hence, violation by one floor.
2. ****** ****** ****** ****** ******
3. ****** ****** ****** ****** ******
9. Shri. Keating G+3 G+5 Committee felt that the Mohendro Road building has violated Rapsang permission by one floor Respondent (fourth floor) and No.15 Columns at the fifth floor.
Sd/- Sd/-
Shri. Cyril V.D. Diengdoh, Shri. B. Dutta,
Deputy Commissioner i/c East Director of Urban
Khasi Hills, Shillong-Chairman Affairs Department
Meghalaya, Shillong-Member
Sd/- Sd/-
Shri. E.Kharmalki, Shri. N.D. Chullai,
Secretary, MUDA Sr.Adv/Sr.GA for the Government
Shillong-Member Member
Sd/- Sd/-
Shri. S.P. Mahanta, Shri. J.M. Thangkhiew
Sr. Advocate for the respondent No.3/MUDA Advocate (one of the
Petitioners)-Member
Sd/- Sd/-
Shri. K Paul, Shri. Toki Blah,
Counsel of the Member
Petitioner-Member
32
Notice issued to the House Owners of Building beyond Ground plus 3 (three) th Date & time of inspection: 20 September, 2014 from 10:00 A.M. onwards Sl. Name Location Approved No. No. of floors Remarks No. of Floors as at site per MUDA permissions
1. ****** ****** ****** ****** ******
2. Saini Pala Motinagar G+4 G+4 at road Committee observed Respondent side and G+5 that an additional floor No.16 at rear side beyond what was permitted has been constructed in the rear side of the building.
Hence violation by one floor at the rear side."
Sd/- Sd/-
Shri. Cyril V.D. Diengdoh, Shri. B. Dutta,
Deputy Commissioner i/c East Director of Urban
Khasi Hills, Shillong-Chairman Affairs Department
Meghalaya, Shillong-Member
Sd/- Sd/-
Shri. E.Kharmalki, Shri. N.D. Chullai,
Secretary, MUDA Sr.Adv/Sr.GA for the Government
Shillong-Member Member
Sd/- Sd/-
Shri. S.P. Mahanta, Shri. J.M. Thangkhiew
Sr. Advocate for the respondent No.3/MUDA Advocate (one of the
Petitioners)-Member
Sd/- Sd/-
Shri. K Paul, Shri. Toki Blah,
Counsel of the Member
Petitioner-Member
13. The petitioners filed Misc. Case being MC PIL No.4/2014 in the present writ petition i.e. PIL No.1/2014 for impleadment of the said 12 (twelve) builders who had constructed their buildings in clear violation as per the report of the said Committee dated 16.10.2014. In that Misc. application i.e. MC PIL No.4/2014, this Court passed an order dated 27.10.2014 for allowing to implead the said 12 (twelve) violators as respondents No.5-16 in the connected writ petition i.e. PIL No.1/2014 and further directed the MUDA, Shillong not to issue any completion certificate in violation of Byelaw 9 and occupancy certificate in violation of Byelaw 10 of the Meghalaya Building Byelaws 2011 to the said 12 (twelve) builders and also to issue notice to the 33 respondents No.5-16 by registered post with AD as well as by dasti service and the parties are permitted to file their respective additional affidavits or affidavits. The said order of this Court dated 27.10.2014 passed in MC PIL No.4/2014 reads as follows:-
27.10.2014 ( T Nandakumar Singh, J) By order of this Court dated 4.09.2014 passed in the connected PIL, a Committee was constituted consisting of the following Members:
1. Learned Deputy Commissioner/In-charge Deputy Commissioner, East Khasi Hills District, Shillong
- Chairman.
2. Mr. B Dutta, Director of Urban Affairs Department, Meghalaya, Shillong - Member.
3. Secretary, MUDA, Shillong - Member.
4. Mr. Toki Blah - Member.
5. Mr. JM Thangkhiew (one of the petitioner) -
Member.
6. Mr. SP Mahanta, learned Sr.Adv (for resptd.No.3) - Member.
7. Mr. ND Chullai, learned Sr.Adv/Sr.GA for the Government - Member.
8. Mr. K Paul, learned counsel for the petitioner -
Member for conducting an inquiry.
The terms of reference for conducting inquiry are as under:
1. How many of the high rise buildings, which are now under constructions, are constructing in strict compliance with the permissions granted by the authority;
2. If there be any violation of the permissions granted by the authority in the ongoing constructions, necessary steps should be taken up by resorting to the provisions under the Meghalaya Town & Country Planning Act, 1973 and also the Meghalaya Building Bye Laws, 2011 i.e. by immediately sealing the unauthorized part of constructions with the help and assistance of the concerned authority i.e. the Deputy Commissioner/In-Charge Deputy Commissioner/Chairman he/she and the concerned Superintendent of Police;34
3. If necessary, criminal proceeding shall also be taken against the owners, who had constructed the buildings in violation to the permissions granted to them.
The Committee after conducting the inquiry submitted a report dated 16.10.2014.
We have perused the report.
As per the report, 12(twelve) builders namely; Shri. Narayan Prasad Jhunjhunwala at Police Bazar Shri. Nilesh Tibrewalla at Thana Road Shri. Satyabrato Baidya at Jail Road Shri. Ajit Das Gupta at Jail Road Shri. Bidur Das at Jail Road Shri. Uday N. Shukla at Oakland Road Shri. Rajkumari Sinha at Bivar Road M/S Mentok Ri-Project Pvt. Ltd. At Bivar Road Shri Maruf Elahi at Bivar Road Smti Beroline Khongshei at Laban Shri Mohendro Rapsang at Keating Road Smti Saini Pala at Motinagar, are constructing their respective buildings in violation of permission granted by MUDA.
This is an application for impleadment of the said 12(twelve) violators as respondents No. 5 to 16 in the connected PIL. Byelaw 7 of the Meghalaya Building Byelaws 2011 clearly provides action to be taken from the side of MUDA. For easy reference, Byelaw 7 is quoted herein under:
"7.DEVIATION DURING BUILDING CONSTRUCTION For any deviation from the sanctioned plan during stage of construction, permission of the Authority shall be obtained and if the construction is not according to the approved plan, the Authority has the power to stop the construction and if the permission holder fails to comply with the notice served by the authority, the Authority is empowered to cancel the building permission and start proceeding against the permission holder as per provisions of Meghalaya Town and Country Planning Act, 1973 as amended from time to time".
Under Byelaw 9 of the Meghalaya Building Byelaws 2011, after completion of the building, the builder shall issue notice to MUDA in the prescribed form.
Under Byelaw 10 of the Meghalaya Building Byelaws 2011, occupancy certificate should be mandatory for all buildings and no person shall occupy or allow any other person to occupy any building or part of a building for any purpose unless such building has been granted an 35 Occupancy Certificate by MUDA.
Byelaws 9 & 10 of the Meghalaya Building Byelaws 2011 are quoted herein below:
"9. COMPLETION CERTIFICATE.
On completion of the building, the applicant and the licensed technical personnel as the case may be shall give notice to the authority in prescribed form as given in Form V and V (A).
10. OCCUPANCY CERTIFICATE.
(i) Occupancy Certificate shall be mandatory for all buildings. No person shall occupy or allow any other person to occupy any building or part of a building for any purpose unless such building has been granted an Occupancy Certificate by the Authority.
(ii) The owner shall submit a notice of completion through the supervising registered architect/ licensed technical personnel along with prescribed documents and plans to the Authority.
The Authority on receipt of such notice of completion shall undertake inspection with regard to the following aspects.
a) Number of floors b) External setbacks c) Parking space provision d) Abutting road width and shall communicate the
approval or refusal of the Occupancy Certificate within 15 days or may issue the same after levying and collecting compounding fee, if any.
(iii) For all high rise buildings, the work shall be subject to inspection by the Fire Services Department and the Occupancy Certificate shall be issued only after clearance from the Fire Services Department with regard to Fire Safety and Protection requirements.
(iv) The functional /line agencies dealing with electric power, water supply, drainage and sewerage shall not give regular connections to the building unless such Occupancy Certificate is produced. The Municipal Authority shall register only the permitted built up area as per the sanctioned building plan and only upon producing and filing a copy of such sanctioned building plan. On the Registration Document it should be clearly mentioned that the registration is in accordance with the sanctioned building plan in respects of setbacks and number of floors.
(v) The financial agencies/institutions shall extend loan facilities only to the permitted built up area as per the sanctioned building plan."
In the interregnum, MUDA is directed not to issue any completion certificate in violation of Byelaw 9 and occupancy 36 certificate in violation of Byelaw 10 of the Meghalaya Building Byelaws 2011 to the said 12(twelve) builders.
In the present case, it is crystal clear that there is no question of issuing completion certificate and occupancy certificate to the said 12(twelve) violators inasmuch as the inquiry committee had submitted a clear report dated 16.10.2014 that, 12(twelve) builders had violated the sanctioned building plan and permission granted by MUDA. MUDA may also take up necessary action as provided under Byelaw 7 and Section 30 (b) of the Meghalaya Town & Country Planning Act, 1973. The said violators shall not sell their flats in the said 12(twelve) buildings to any intended purchaser by concealing the facts that the buildings are constructing in violation of the sanctioned building plan and permission granted by MUDA.
Respondent No. 3 is directed to publish the gist of this order in the leading local daily for 3(three) consecutive days. It is also made clear that no one shall occupy the said 12(twelve) buildings which are under construction. The Chairman of the said Committee i.e. Deputy Commissioner, East Khasi Hills District shall submit the still photographs of the said 12(twelve) buildings taken in the course of enquiry to this Court on the next date.
Issue notice the opposite party/respondents No. 5 to 16 by Registered Post with AD card as well as by dasti service within 3(three) days.
It is also made clear that parties are permitted to file their respective additional affidavits for bringing subsequent events to the notice of this Court.
Registry is also directed to furnish a copy of this order to the learned counsel for the parties within 48 hours."
14. After proper service of notice to the respondents No.5-16, they filed their separate affidavits-in-opposition in the present writ petition. This Court passed an order dated 28.11.2014 in the present writ petition i.e. PIL No.1/2014 that the MUDA had earlier given special permissions for raising some Govt. buildings beyond G+3 and inline thereof had also granted permissions for raising some private constructions as well, in violation of the Meghalaya Building Byelaws, 2011. Temptations on the part of the MUDA to provide sanction in violation of the Meghalaya Building Byelaws, 2011 at the risk of inviting a larger scale probable seismic disturbances on account of interference with ecological balance need to be closely examined. As in such 37 cases of violations, normally a group of officers work together in an organized manner, sometime also for extraneous consideration, it would be appropriate to seal the records, for the present, in respect of such buildings which have been identified in the report of the Committee constituted by this High Court. In order to entrust this job to an independent agency, we think it appropriate to direct the local Superintendent of Police, CBI, Shillong to act as an officer of the Court only for this limited purpose, without registering a case, to seal the records for production before this Court on the next date of hearing. This Court after considering prima facie material as to the violation of the MUDA Byelaws in granting permissions to the private builders to construct their buildings beyond G+3 had passed the said order dated 28.11.2014 directing the Superintendent of Police, CBI, Shillong to act as an officer of this Court and seal the records for production before this Court. Accordingly, the records for granting permissions to the private builders or owners for construction beyond G+3 in clear violation of the Bylaws, 2011 had been sealed.
15. On 30.01.2015, the learned counsel for the petitioner submitted that apart from the buildings as pointed out in the report of the Committee constituted by this Court dated 16.10.2014, there are such buildings which had been constructed in serious violation of the Byelaws and guidelines laid down by the MUDA. Since they have not been impleaded as parties, learned counsel for the petitioners prays for liberty to do so by way of filing appropriate application. Accordingly, the petitioners filed Misc. application being MC PIL No.1/2015 Ref: PIL No.1/2014 for impleadment of 12 (twelve) more violators, who had constructed above G+3 as respondents No.17-28 and by an order dated 13.02.2015 passed in the said misc. application i.e. MC PIL No.1/2015, the said 12 (twelve) violators had been impleaded as respondents No.17-28 in the present writ petition. This Court also further issued notice to them i.e. respondents No.17-28 and also allowed to file their respective affidavits-in-opposition. After receipt of the notice, the respondents 38 No.17-28 filed their separate affidavits-in-opposition. This Court again passed an order dated 10.04.2015 in the present writ petition i.e. PIL No.1/2014 for constituting a Committee comprising of Mr. Sanjay Goyal, Deputy Commissioner, Shillong as Chairman with Mr. M. Kharkrang, Superintendent of Police, Shillong and the Chief Judicial Magistrate, Shillong as Members, who shall carry out the directions of Division Bench and seal the premises in question as pointed out in the earlier orders and take photographs of the same and a senior officer not below the rank of Secretary, MUDA shall assist with the exercise and he shall provide requisite manpower and necessary logistic support to carry out the directions of this Court. The Committee was further directed to visit construction sites in the ownership of respondents No.17-28 and identify the violations, if any. The Committee shall take photographs of the illegal construction and place the same on the record of the case so that the Court would pass appropriate order on the next date of listing.
16. This Court again passed an order dated 17.04.2015 granting two weeks' time to carry out and implement the said order of this Court dated 10.04.2015. The said Committee submitted the report after inspecting the 12 (twelve) buildings of the respondents No.17-28 on 28.04.2015 and also took photographs of the said 12 (twelve) buildings. As per the report submitted by the said Committee dated 28.04.2015, the MUDA, Shillong had granted permissions for construction of the floor beyond G+3 i.e. G+4 for respondent No.16 and respondent No.17, B, G+4 for respondent No.18, G+5 for respondent No.19, G+4 rear block and G+5 in the front block for respondent No.20, G+5 for respondent No.21, B, G+4 for respondent No.22, G+5 for respondent No.23, B, G+4 for respondent No.24, B, G+3 for respondent No.25, G+3 for respondent No.26, G+4 for respondent No.27 and G+5 for respondent No.28. It is the case of the respondent No.3-MUDA, Shillong that for special reason, permits for construction of buildings beyond G+3 can be 39 granted to some individuals. In the said two affidavits-in-opposition filed by the respondent No.3-MUDA, Shillong did not give any special reason for granting permissions for construction of buildings more than G+3 to the respondents No.13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27 & 28. Normally, permission for constructing of building only G+3 was granted for residential buildings/residential apartments in strict compliance with Byelaw 18, Table-VI of the Byelaw 30 for high rise building having above 2000 mts. plinth area and more than G+3 and specific floor area ratio and plot coverage stipulations as per Table-VIII of the Byelaw 40. There is not even a whisper from the side of the respondent No.3-MUDA that for granting permissions for buildings above G+3 to the respondents No. 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27 & 28 the MUDA had adhered to Byelaw 18, Table-VI and Table-VIII which prescribe the maximum permissible F.A.R. and maximum permissible coverage percentage of plot area. For the residential building/apartment maximum permissible F.A.R. and maximum permissible coverage percentage of plot area are 2.0 and 50% respectively and maximum permissible height will be 15 mts. and with ground floor parking 19 mts. Slope profile of the plot as provided under Byelaw 18 shall also strictly be complied with in issuing building permit. From the records available, it is clear that Table-VI to the Byelaw No.30, Table-VIII to Byelaw 40 and Byelaw 18 are not complied with in granting the permissions to construct the buildings of more than G+3 in favour of the respondents No.13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27 &
28. The relevant portion of the report of the said Committee after inspecting the site on 28.04.2015 for respondents No.17-28 reads as follows:-
"Observation at Site of the Twelve Buildings impleaded from serial No.17 to No.28 by the Committee constituted by the Hon'ble High Court of Meghalaya vide order dated 10th April 2015 in PIL No.1/2014.40
Date & time of Inspection: 28th April, 2015 from 11 A.M. onwards Sl. Name Location Approved No. of Remarks No No. of floors floors as at site per MUDA permission
1. Shri.Sanjib Das G.S.Road, G+4 G+3 The number of floors at Respondent No.17 Police Bazar site is within the building permit issued by the Meghalaya Urban Development Authority, Shillong as of today the th 28 April, 2015. However, the committee observed the following:
1. The Meghalaya Urban Development Authority, Shillong had served notices not to extend beyond G+3 floors and the same has been complied with, till date.
2. The drain width seems to have been reduced towards the rear side and to ascertain the same a survey the plot is recommended at the earliest.
3. An approach step from the left side of the building has been constructed abutting the plot of one of his neighbours and Shri. Sanjib Das has been instructed to construct a gate at the building entrance only.
4. There are certain changes in the use of the floors and deviation in the construction from the approved drawings and it appears that some construction activities had taken place without waiting for approval from MUDA
2. Manchin Fincon Jail Road B,G+4 B,G+ The number of floors Private Limited 4 constructed at site is Respondent No.18 within the building permit issued by the Meghalaya Urban Development Authority, Shillong as of th today the 28 April, 2015 and as per the status report submitted on the th 16 October 2014 by the previous committee constituted by the Hon'ble High Court of Meghalaya vide order dated 04.09.2014 in PIL No.1 of 2014.41
3. Shri Kenneth M. Bivar Road G+5 G+3 The number of floors Lyngdoh constructed at site is Respondent No. 19 within the building permit issued by the Meghalaya Urban Development Authority, Shillong, as of th today the 28 of April 2015
4. Shri Sanjay Bivar Road G+4 in the G+4 The number of floors Jhunjhunwala Rear in the constructed at site is Respondent No. 20 Block and Rear within the building permit G+5 in the Block issued by the Meghalaya Front and Urban Development Block G+3 Authority, Shillong, as of th in the today the 28 of April Front 2015. The entry to the Block fourth floor of the Rear Block was sealed by the Meghalaya Urban Development Authority Shillong in compliance to the interim order of the Hon'ble High Court of Meghalaya in PIL No. 1 of 2014 dated 11.04.2014 and thereafter no construction activity was observed beyond the G+3 floor.
5. Shri Modrick Bishop G+5 Nil Construction work at site Nongkynrih Cotton Road has not yet started.Respondent No. 21
6. Shri B.D. Demseinio- B, G+4 B, The number of floors at Marbaniang ng, G+3 site is within the building Respondent No. 22 Laitumkhrah permit issued by the Meghalaya Urban Development Authority, Shillong, as of today the th 28 of April 2015 and as per the status report th submitted on the 16 of October 2014 by the previous Committee constituted by the Hon'ble High Court of Meghalaya vide order dated 04.09.2014 in PIL No. 1 of 2014.
7. Shri Lamboklang Motinagar G+5 G+5 The number of floors Mylliemngap constructed at site is as Respondent No. 23 per the building permit issued by the Meghalaya Urban Development Authority, Shillong, as of th today the 28 of April 2015 and as per the status report submitted on th the 16 of October 2014 by the previous Committee constituted by the Hon'ble High Court of Meghalaya vide order dated 04.09.2014 in PIL no. 1 of 2014.42
8. Smt. T.A. Sohkhlet Lummawrie, B, G+4 G+1 The number of floors Respondent No.24 Laitumkhrah constructed at site is within the building permit issued by the Meghalaya Urban Development Authority, Shillong, as of th today the 28 of April 2015.
9. Shri. Allen Wood Fire Brigade, B, G+3 B, The number of floors Swer Respondent Laitumkhrah G+3 constructed at site is as No. 25 per the building permit issued by the Meghalaya Urban Development Authority, Shillong, as of th today the 28 of April 2015.
10. Islamia Secondary G.S. Road, G+3 G+3 The number of floors at School Respondent Police Bazar site is within the building No. 26 permit issued by the Meghalaya Urban Development Authority, Shillong, as of today the th 28 of April 2015.
However the Committee observed the following:
1. The Meghalaya Urban Development Authority, Shillong had served notices not to extend beyond G+3 floors and the same has been complied with, till date.
2. The ground floor at the rear side of the building appears to be not fit for habitation and needs to be discarded by filling it as its floor level seems to be lower than the bed level of the drain adjoining it.
3. The Committee also observed that presently the alignment of the classrooms are not satisfactory and fit for an educational institution as no natural ventilation and lighting is provided to each classroom.
4. There is major deviation from the approved drawings and revised drawings are yet to be approved by MUDA.
5. Apparently the plot coverage have increased and the Committee observed that dismantling of some panels of slab at the first floor level of the rear side is to be done so that the same is brought within the permissible limit and Open Space for the Children is also ensured as per the School Buildings norms.43
11. Shri P. Dkhar (Smt. Kench G+4 G+4 The number of floors Fidelia Dkhar) Trace, constructed at site is Respondent No. 27 Laban within the building permit issued by the Meghalaya Urban Development Authority, Shillong, as of th today the 28 of April 2015. However all the floors have already been occupied for residential use although the Meghalaya Urban Development Authority, Shillong has not issued the Occupancy Certificate as the Lift and the emergency staircase have not been installed yet.
12. Shri Nicholas Boyce G+5 G+5 The number of floors Wallang (Merita Road, constructed at site is Wallang) Lachumiere within the building permit Respondent No.28 issued by the Meghalaya Urban Development Authority, Shillong, as of th today the 28 of April 2015.
Sd/- Sd/- Sd/- Smti. K.M.L Nongbri Shri. M. Kharkrang Shri Sanjay Goyal(IAS)
Chief Judicial Magistrate, Superintendent of Police, Deputy Commissioner, East Khasi Hills, East Khasi Hills, East Khasi Hills Shillong Shillong Shillong
17. The still photographs of the buildings constructed by the respondents No.5-28 are being shown in the relevant portion of this judgment and order. It is clear from the record that for the respondents No.5-12, 14, 15 and respondent No.26, the MUDA granted permissions for construction of buildings for only G+3. But for no special reason, permissions were granted for constructing beyond G+3 to the respondents No.13, 16,17-24, 27 & 28.
The MUDA who is the competent authority for granting permission for construction of buildings stated very clearly in their 2 (two) affidavits-in- opposition mentioned above that the MUDA did not issue a single permit for G+4 and G+5 for construction of residential buildings/residential apartments after the interim order of this Court dated 11.04.2014 to any private or builder. It is also clearly stated in their 2 (two) affidavits-in-opposition that for issuing permit for constructing building more than G+3, there shall be special reason 44 and that too in strict compliance with the Byelaw 18, Byelaw 30 & Table-VI, Byelaw 40 & Table-VIII and also Byelaw 43. This Court, as early as 11.04.2014, had directed the respondent No.3-MUDA not to allow the construction of building beyond G+3. A chart containing the findings of the Committee constituted by this Court, buildings constructed by the respondents No.5-28 and defence taken by the concerned respondents No.5- 28 for construction of buildings illegally is prepared hereunder:-
Respondent Sanctioned Floors at site Defense of the Observations of the No./ name of Floors concerned petitioner the Respondent Respondent 1 2 3 4 5 Respondent G+3 G+5 Soft soil 2 additional floors illegally No. 5 Narayan resulting in the constructed.
Prasad basement therein.
Jhunjhunwala Building less
than 15 meters within
permissibility of
clause 2.28 of Bye
laws.
Basement and
mezzanine floor to be
used for parking.
No certificate of
earthquake engineer
is attached and Bye
Laws is silent about
Earthquake proof
building. Report is not
conclusive.
Respondent G+3 G+5 Submitted Quinton Road side six
No. 6 Nilesh revised building floors. Thana Road side
Tibrewala drawing plan with four floors that 2 floors.
additional floor. Hence violation of 2 floors
Ground floor from Quinton road.
used for parking as
such additional 1 floor
permitted.
Height of
building 15 meters
excluding basement.
(actual height 19
meters)
Structural
deviations due to hilly
topography (bye laws
8 (g))
Respondent G+3 G+4 Height of Extra basement.
No.7 building is 14.40
Satyabrata meter (less than 15 Application for filing up the
Baidya meter) same filed.
Additional floor
(height of 2.4 meters)
constructed to bring
ground floor at one
plain.
45
Respondent G+3 G+4 Height of Extra basement.
No. 8. Ajit Das building is 14.50
Gupta meter (less than 15 Application for filling up
meters) the same filed.
Additional floor
(height of 2.5 meters)
construed to bring
ground floor at one
plain.
Respondent G+3 G+4 Slab to be used Slab on some panels have
th
No.9 Bidur for lift, water been casted over the 4
Das purification and not floor.
for residential
purpose. Hence violation.
Height of
building (12 meters) Statement made in Court
EXCLUDING ground willing to dismantle the
floor (parking floor) same
Obtained
Seismic certificate.
(not attached)
Respondent G+3 G+4 MBBL permit Application filed seeking of
No. 10. Uday G+3 with a height of the Court to fill up the
N. Shukla 15 meters ground floor below the
EXCLUDING road level and raise
basement. additional floor.
Structural
deviations due to hilly
topography (bye law 8
(g)
Ground floor
used for parking as
such additional 1 floor
permitted.
Respondent G+3 G+4 Height of Application filed for filling
No.11 Raj building is 14.35 up basement.
Kumari Sinha meters (less than 15
meter)
Additional floor
(height of 2.35
meters) constructed
to bring ground floor
at one plain.
Respondent Block Block A, A building can Violation by 3 (three)
No. 12 M/S A, B, B, have 7 distinct floors floors. Sealed at 3 point
Mentok Ri- D=G+3 D=G+4 Slope difference under orders of this
Project Pvt. Block Block of 22 meters Hon'ble Court.
Ltd C= C=G+4+ Constructed in
G+3 + non Raft Slab foundations
non habitual which required the
habitua floor owner to dig 1.5
l floor meters thus additional
Block E Block E area.
& F= &F Area less than 3
STP + =STP + meter not intended to
G+ 3 two be used. Earth filling
Letter floors. to be done (para x)
for MUDA bye-law
revised 40 permits G+4
building Admitting in para
plan (xi) that 2 floors
filed addition but both
and inaccessible .
sanctio Soil rest carried out
n given as per load bearing
for G+4 capacity (para b
internal page 15)
46
Respondent G+4 G+5 Initial G+4 Permission beyond
No. 13. Shri permission given permissible limits.
Maruf Elahi (internal page 8) 1 additional floor has been
1 more floor constructed.
sanctioned by revised
plan (internal page15)
because of
topography of land.
Respondent G+3 G+4 Within the 1 additional floor beyond
No. 14. Smti permissible height of what was permitted
Beroline 19 meters including constructed.
Khonhshei parking floor.
Hilly topography
Respondent G+3 G+5 First block 9.9 Violation by 2 (two) floors.
No. 15. Smti meter + parking 3.3 Basement converted into
Mohendro meters two additional floor by
Rapsang Second block casting slab.
9.9 meters + parking
4.95
The parking was
split into 2.25+2.70
not affecting overall
height
Respondent G+4 G+4 at road Permission Permission
No. 16 Smti side and G+5 granted by MUDA beyond
Saini Pala at rear side after full filling all permissible limits.
formalities. Extra basement
Plan of constructed.
basement already Statement made
included in the plan willing to fill up
submitted to MUDA. basement.
Building
constructed stands at
60 ft equivalent to
18.288 Mtrs as such
within permissible
limits.
Respondent G+4 G+3 A building can Permission of
No. 17. Sanjib have 7 distinct floors MUDA beyond
Das Sanction of permissible limits.
original building plan Encroachment on
vide memo dated drain side and
10.10.2012 survey
Submitted recommended.
revised building plan Changes to the
for approval for G+3 use of the floors
(4 floors) with a total and deviations in
height of 11.90 Mtrs the construction
and as such not a without approval
high-rise. from MUDA
Being in Seismic
Zone does not mean
that multi-storied
buildings cannot be
constructed.
Has followed
due procedures and
norms.
Building
constructed with
seismological
considerations.
No scientific
evidence that building
more than 4 storeys
cannot be
constructed.
Respondent B, G+4 B, G+4 A building can Permission of
No. 18. have 7 distinct MUDA beyond
Machin Fincon floors permissible limits
47
Pvt. Ltd. Applied for 5 and as such
floors (g, G+1, violation by two
G+2, G+3, and floors.
G+4) with a total
height of 18.35
Mtrs.
In the process of
giving a revised
building plan,
original plan for
showroom on
ground floor,
now to be
converted into
covered parking.
Conformity with
FAR,
MUDA restricted
height to G+3
with height of 15
Mtrs. And for the
purpose a
basement and
ground floor
parking are
excluded.
Respondent G+5 G+3 Construction is Permission of
No. 19. being done in MUDA beyond
Kenneth M. accordance with permissible limits.
Lyngdoh the permission
granted by
MUDA
permission
dated
30.01.2014
BIS standards
followed.
Committee had
not found
anything
irregular, illegal
and as such no
reason why
should remain a
party.
Building
constructed with
latest
technology.
No reason to
doubt efficiency
of MUDA
Respondent G+4 in the G+4 in the Floors and a Permission of
No. 20. Sanjay Rear Block Rear Block higher MUDA beyond
Jhunjhunwalla and G+5 in and G+3 in permission as permissible limits.
the Front the Front per clause 41 of Entry to fourth
Block. Block the MBBL as floor at the rear
such a building side sealed as per
can have upto a directions of this
maximumof 10 Hon'ble Court
floors with a
height of 27
Mtrs.
Due to hilly
topography
building plan
deviate
Building has
been
constructed as
48
per MUDA
sanctioned plan
Respondent G+5 Nil Permission of
No.21. MUDA beyond
Modrick permissible limits.
Nongkynrih
Respondent B, G+4 B, G+3 A building can Permission of
No.22 Bavin have 7 distinct MUDA beyond
Deren floors. permissible limits.
Marbaniang Approval is Hence violation by
given for ground two floors.
+ 4 floors for
commercial use,
total height of
17.10 Mtrs.
Till now carried
out work only for
basement floor
and G+3 floors.
Seismic activity
as such
buildings
constructed as
per standards
No scientific
evidence that
buildings upto 4
storeys are less
susceptible to
earthquakes.
For height of
floors basement
and ground floor
parking are
excluded.
Respondent G+5 G+5 Permission Permission of
No. 23 dated MUDA beyond
Lamboklang 19.03.2012 permissible limits.
Mylliemngap granted for Violation by two
Ground plus 5 floors.
(five) floors only
for the Ground
Floor= Parking,
st
1 Floor to Fifth
Floor=
Apartmental
use.
Engaged
registered
architect/technic
al personnel and
entire
construction
erected under
active
supervision.
No point of time
has ever
violated the
Meghalaya
Building Bye
Laws, 2011
Respondent B, G+4 G+1 Permission Permission of
No.24 Dr dated 8.05.2013 MUDA beyond
(Mrs) T.A. granted for permissible limits.
Sohkhlet Basement,
ground plus 4
floors only for :
(i) Basement
and ground
floor= Parking
49
st nd rd
(ii) 1 , 2 , 3
th
and 4
floor=Hall use
Building plan
prepared by
licensed
architect and
prepared with
seismic
considerations
as per IS code.
Zone V does not
automatically
urge that multi
storeyed
buildings or high
rise buildings
should not be
allowed. The
building so
constructed
should conform
to structural
engineering
criteria in
seismic zone- V
Building more
than 4 storeys
does not imply
that in the event
of an earthquake
there is danger
of damage and
risk to human
life.
Respondent B, G+3 B, G+3 Permission Permission of
No.25 Allan granted MUDA beyond
Wood Swer 3.04.2013 for permissible limits.
basement and
ground plus 3
floors (Total 5
floors)
Construction
completed
strictly in terms
of the sanction
plan.
Building
constructed as
commercial
complex, to
provide parking
facilities.
Respondent G+3 G+3 Permission The ground floor
No.26 dated at the rear side of
Secretary, 27.09.2007 the building
Islamia granted for (a) appears to be not
Secondary basement fit for habitation
School Floor= and needs to be
educational use discarded by filling
+ lift spaces, (b) it as its floor level
ground seems to be lower
Floor=ramp & than the bed level
parking space + of the drain
classroom + adjoining it.
Electrical room + The alignment of
water closets + the classrooms
lift spaces etc (c) are not
st
1 Floor satisfactory and fit
=commercial + for an educational
educational use institution as no
50
+ water closets natural ventilation
+ lift spaces (d) and lighting is
nd
2 Floor provided to each
=educational classroom.
rd
use (e) 3 Floor There is major
= office. deviation from the
Thereafter the approved
basement floor drawings
was cancelled. The plot coverage
No classroom is has increased and
being housed in some panels of
the lower floor at slab at the first
the basement floor level of the
and on the rear side are to be
ground floor. dismantled.
Basement and OPEN SPACE for
ground floor is children not
meant for available.
parking of Building not fit for
vehicles. school.
Classrooms are
first floor
onwards with
proper
ventilation and
hygiene.
The
arrangement of
classrooms at
present has
been made
temporarily to
facilitate ongoing
construction.
Respondent G+4 G+4 Name has been Permission MUDA
No. 27 P. wrongly beyond
Dkhar mentioned as permissible limits.
Shri P. Dkhar All the floors have
infact the been occupied for
building belongs residential use
to Smti. although MUDA
Indashisha has not issued the
Kharduit who Occupancy
purchased the Certificate.
same with one
floor constructed
.
Permission
dated
25.06.2012
given to Smti.
Fidelia
Kharkongar
(vendor)
The instant PIL
do not meet the
requirement of
pleadings.
Respondent G+5 G+5 Permission Permission of
No. 28 dated MUDA beyond
Nicholas 28.11.2007 permissible limits.
Wahlang granted for
Ground + 3
(three) floors for
hotel building in
favor of Smti.
Meriata
Wahlang.
Thereafter
permission
dated
51
16.03.2012
granted for (i)
th
extension of 4
th
and 5 Floor
Commercial
(Hotel) and
alteration of the
approved G+3
commercial
(Hotel) building.
Change of use
from Office cum
residential to
commercial
(Hotel).
Sd/-
Advocate for petitioner"
Respondent No.5-Shri.Narayan Prasad Jhunjhunwala
18. The Chart mentioned above, indicates that MUDA granted permission to the respondent No.5-Shri.Narayan Prasad Jhunjhunwala for construction of building up to G+3 but the respondent No.5-Shri.Narayan Prasad Jhunjhunwala had constructed upto G+5. Therefore, the two additional floors had been constructed illegally. The only defence taken by the respondent No.3-MUDA is that under Byelaw 2.28, the building above 4 (four) storeys or building rising 15 mts or more is permissible. But the Byelaw 2.28 cannot be read in isolation with Byelaw 18, Byelaw 30 & Table-VI, Byelaw 40 & Table-VIII and Byelaw 43. The respondent No.5 in his affidavit-in-opposition vide para 4 clearly admitted that the approval thereof was granted for G+3 floors for commercial use and the building had been constructed as per building plan except some deviation (Byelaw 18 does not allow) which had occurred due to the reason that the upper layer of the soil was found to be very soft which had forced him (respondent No.5) to place the foundation of the building in depth, resulting a basement emerged therein and the same has been treated by the Enquiry Committee ground floor and ground floor one. Under the Byelaws, 2011, there cannot be two ground floors such as ground floor and ground floor one. As per the permission granted by the 52 MUDA, the respondent No.5 was never granted permission to construct the basement. Further in his affidavit-in-opposition stated that the Enquiry Committee during the course of inspection found that 2 (two) additional floors had been constructed and the same has been treated as violation, however, it was not the intention of the respondent No.5 to construct the building in violation of Byelaws known as "the Meghalaya Building Byelaws, 2011".
Therefore, in the affidavit-in-opposition of the respondent No.5 clearly admitted that he had constructed the building beyond sanctioned floor i.e. G+3 by adding two additional floors in the name of ground floor and ground floor one. The so called ground floor and G+1 are shown in the still photograph which was taken in the presence of the respondent No.5 below:-
NAME LOCATION Approved No. of No of floors at Remarks Floors as per Site MUDA permission 53 Shri Narayan Police Bazar G+3 G+5 Committee observed Jhunjhunwala that two additional floors have been constructed beyond what was permitted Hence violation by two floors.
Therefore, the above additional floors i.e. G+4 and G+5 above the permissible floors i.e. G+3 are illegal and are to be demolished.
Respondent No.6-Shri.Nilesh Tiberwal
19. The Chart mentioned above, indicates that MUDA granted permission to the respondent No.6-Shri.Nilesh Tiberwal for construction of building up to G+3 but the respondent No.6-Shri.Nilesh Tiberwal had added 2 (two) more additional floors. The respondent No.6 in his affidavit-in-opposition stated that the MUDA granted permission for construction of building only for G+3. Shillong being a hilly area having hilly topography, building construction is a tough challenge. Because of the hilly topography, laying of foundation is a herculean task and very often results in some deviations from the sanctioned building plan. Further due to earth-cutting to find hard soil for laying the building foundation, extra excavations (which are not permissible under Byelaw 18) are required to be made which sometimes requires special architectural treatment in the form of basement/foundation to give a strong foundation to the building. Further, due to hilly topography, many a times buildings have to be constructed at split-levels, where the levels of different floors one portion of building are different from the other portion of the building. After, the building permission was granted to the respondent No.6, he commenced the construction work. While the construction work was going on, the officials of MUDA periodically visited the construction site. By August, 2013, the respondent No.6 had already completed construction of structural frame. At that stage, the respondent No.6, who had obtained the building permission for hotel building changed the idea and decided to have a 54 commercial-cum-residential building. Accordingly, the respondent No.6 submitted a letter dated 15.10.2013 to the Town Planning Officer, MUDA stating that he (respondent No.6) intends to change the use of the building from hotel to commercial-cum-residential. Further the respondent No.6 stated that he submitted a revised building drawing plan with an additional floor for approval. This was in view of the fact that under Byelaws, 2011, buildings with G+3 floors are permitted and also in case of ground floor parking, an additional floor may be permitted. It is clear from the affidavit-in-opposition filed by the respondent No.6 that the MUDA had not granted permission for constructing of 2 (two) additional floors on the request of the respondent No.6 to construct 2 (two) additional floors. Inspite of knowing clearly that the MUDA had not granted permission to construct 2 (two) additional floors, the respondent No.6 constructed 2 (two) additional floors i.e. G+4 and G+5. The permit issued by the MUDA for construction was only G+3 for commercial use (hotel) vide letter dated 11.05.2013, which reads as follows:-
"MEGHALAYA URBAN DEVELOPMENT AUTHORITY SHILLONG No.MUDA.BP/1482/2010-11/8 Dated: Shillong, the 11th May, 2011 To, Shri. Nilesh Tiberwalla & Prem Lata Tiberwalla, Thana Road, Police Bazar, Shillong.
Subject: Building Permission.
Reference: Your application No.NIL Dated 29th March 2011.
Sir/Madam,
With reference to your application No.Nil, Dated 29th March 2011, I am to inform you that sanction has been granted for erection/re-erection of building at Thana Road, Police Bazar, Shillong, as per provisions of Meghalaya Town and Country Planning Act, 1973 and Meghalaya Building Bye- Laws, 2001 made there under:-
1. At least a week before alignment of the building and erection of footings, the Authority shall be intimated stating the commencement date and time as per format of commencement certificate so as to depute an authorized official to ensure the 55 correct layout as per approved building plans.
2. Completion Certificate shall be sent to the undersigned to issue Occupancy Certificate.
3. This permission shall remain in force for a period of three years with effect from the date of issue.
4. As per the Electricity Rules part of the building shall have a minimum distance as follows:
a) Low and Medium voltage lines and service line 2.5m vertically and 1.2m horizontally.
b) High voltage lines upto including 33,000v, 3.7m vertically and 2.0m horizontally.
c) Extra High Voltage lines beyond 33,000v, 3.7m vertically and 2.0 horizontally + 0.3m for every additional 33,000v or part thereof.
5. 4.50m/3.00m setback from the major/minor road R.O.W. and minimum side setbacks as per approved drawing from all neighbours, footpaths/drain etc. should be maintained.
6. Clear setback of 1.80m for septic tank, soak pit should be maintained.
7. Approval is given for Ground Plus 3 (Three) Floors only for Commercial use (Hotel).
8. No deviation nor change of use is permissible from approved drawings.
9. Proposed area for parking should be strictly followed as per approved drawings.
10. Fire/Emergency exit as shown in the approved drawings shall be provided.
11. Facilities for persons with Disabilities as per Section E of Meghalaya Building Bye-Laws, 2011 should be incorporated in the building.
12. (a) The owner above and Shri. M Kharkongor, Regn.
CA/2001/39623, Meghalaya, Shillong are together responsible towards ensuring compliance alignment of condition 1, 5 & 6 above.
(b) The Consultant Engineer, Shri. G.W. Lakadong, Regn. MUDA/LTP/2009/ER 1993/6 in this regard, is binded by this SANCTION to ensure safe and sound Civil Engineering practice at the time of execution and construction of the Building.
(c) The Owner with Shri. M. Kharkongor and Shri. G.W. Lakadong are jointly responsible towards execution, construction and upto completion of the building (Sound Civil Engineering Practices i.e. usage of building materials/correct concrete mix, steel reinforcement details etc.). 56
(d) The Consultant Engineer, Shir. G.W. Lakadong shall ensure that construction of retaining walls, foundation etc. is as per IS 1904-1986.
(e) The Consultant Engineer shall ensure that Rain Water Harvesting system has to be provided in the building. Enclosed: 1 set of approved drawings Yours faithfully, Sd/-
Town Planning Officer, Meghalaya Urban Development Authority, Shillong"
The still photograph of the building constructed by the respondent No.6 adding 2 (two) additional floors i.e. G+4 and G+5 is shown hereunder:-
NAME LOCATION Approved No. of Floors as per No of Remarks MUDA permission floors at Site Shri Nilesh Thana Road G+3 G+5 Committee observed that Tibrewalla from Quiton Road side six floors have been constructed whereas from Thana Road side four floors have been constructed, hence the committee felt that 2 floors from Quiton road side is beyond what was permitted and therefore is a violation.57
The respondent No.6 had admitted in his affidavit-in-opposition that the building is constructed at the gradient of the road i.e. hill slope of loose soil. The illegally constructed additional floors i.e. G+4 and G+5 are to be demolished.
Respondent No.7- Satyabrata Baidya
20. The Chart mentioned above, indicates that MUDA granted permission to the respondent No.7-Shri.Satyabrata Baidya for construction of building up to G+3 but the respondent No.7-Shri.Satyabrata Baidya constructed 1 (one) additional floor i.e. G+4. The respondent No.7 in his affidavit-in-opposition is not denying that the permission granted for constructing of building to him (respondent No.7) is only G+3. It is stated in his affidavit-in-opposition that the permission for the building up to ground floor plus 3 (three) floors is in accordance with the sanctioned plan, but in a small portion of the floor area there is an open elevated portion below the ground floor required to bring the ground floor of the building at one plain as per the sectional drawing which has a height of 2.40 meters i.e. much less than the height of 3 meters required to constitute as a floor and this has been erroneously termed as ground floor by the Committee constituted by this Court. The said open elevated space below the portion of the ground floor of the building of the respondent No.7 under construction qualifies to be treated as a basement or cellar as defined in the Byelaws, 2011 but does not qualify to be a floor. The respondent No.7 further stated that he had submitted an application for filling up the ground level so that 1 (one) additional floor i.e. G+4 may not be demolished. Whatever be the case, the respondent No.7 had admitted that he constructed 1 (one) additional illegal floor i.e. G+4 and in order to save that floor, he wants to fill up one of the floor at the ground level by earth. The still photograph of the building of the respondent No.7 constructed at the gradient of the road i.e. hill slope which shows the illegally constructed 1 (one) additional floor i.e. G+4 is shown as hereunder:-58
NAME LOCATION Approved No. of Floors as per MUDA No of floors Remarks permission at Site Shri Satyabrato Jail Road G+3 G+4 Committee observed that Baidya an additional floor beyond what was permitted has been constructed. Hence, violation byone floor.
The illegally constructed 1 (one) additional floor (G+4) is to be demolished.
Respondent No.8 Shri. Ajit Das
21. The Chart mentioned above, indicates that MUDA granted permission to the respondent No.8-Shri.Ajit Das Gupta for construction of building up to G+3 but the respondent No.8-Shri.Ajit Das Gupta constructed 1 (one) illegal additional floor i.e. G+4. The construction of the G+4 i.e. illegal additional floor is not yet completed. It is also a fact that the respondent No.8 had constructed the building at the gradient of the road i.e. hill slope of loose soil. The respondent No.8 in his affidavit-in-opposition stated that the building constructed by him (respondent No.8) comprising of ground floor plus 3 59 (three) floors is in accordance with the sanctioned plan but in a small portion of the floor area there is an open elevated portion below the ground floor of the building at one plain as per the sectional drawing which has a height of 2.50 meters. It is the case of the respondent No.8 in his affidavit-in-opposition that the ground floor which is open cannot be constitute as a floor and this has erroneously termed as ground floor by the Committee constituted by this Court. The still photograph of the building of the respondent No.8 which shows 1 (one) illegal additional floor i.e. G+4 under construction is shown as hereunder:-
NAME LOCATION Approved No. of Floors as per MUDA No of floors Remarks permission at Site Shri Ajit Das Jail Road G+3 G+4 Committee observed that Gupta an additional floor beyond what was permitted has been constructed. Hence, violation by one floor.
The illegally constructed additional floor i.e. G+4 is to be demolished.60
Respondent No.9 Shri. Bidur Kumar Das
22. The Chart mentioned above, indicates that MUDA granted permission to the respondent No.9-Bidur Kumar Das for construction of building up to G+3 but the respondent No.9-Shri.Bidur Kumar Das constructed 1 (one) additional floor i.e. G+4. The respondent No.9 in his affidavit-in-opposition stated that the building constructed by him (respondent No.9) is less than 15 meters. But he (respondent No.9) is not denying that the permission for constructing the building is only G+3. It is pertinent to mention that the maximum height limit for constructing building could be 15 meters, but does not mean that every person can construct his building upto 15 meters. One cannot say that for constructing building upto 15 meters, permission of MUDA is not required. It is admitted case of the parties that the building is to be constructed as per the permission granted by the MUDA and permission granted by the MUDA to the respondent No.9 is only for construction of building upto G+3. But the defence of the respondent No.9 in his affidavit-in-opposition is that there is no intentional infringement of the fundamental rights guaranteed under Articles 19 and 21 of the Constitution of India. The respondent No.9 further submits that perhaps in view of the Byelaw 2.41, the said building of the respondent No.9 in question does not fall under the purview of the high rise building. Therefore, it is clear from the affidavit-in-
opposition filed by the respondent No.9 that the respondent No.9 got the permission for constructing his building only for G+3 but the respondent No.9 constructed one additional floor i.e. G+4 illegally. The still photograph of the building of the respondent No.9 constructed at the gradient of the hill slope showing illegal additional floor i.e. G+4 is shown as hereunder:- 61
NAME LOCATION Approved No. of Floors as per No of floors Remarks MUDA permission at Site Shri Bidur Das Jail Road G+3 G+4 Committee observed that slabs on some panels had been casted over the 4th floor, beyond the permitted level. Hence, part violation.
The illegally constructed additional floor i.e. G+4 is to be demolished.
Respondent No.10 Shri. Uday N. Shukla
23. The Chart mentioned above, indicates that the MUDA granted permission to the respondent No.10-Shri.Uday N. Shukla for construction of building up to G+3 but the respondent No.10-Shri.Uday N. Shukla constructed 1 (one) additional floor i.e. G+4. The respondent No.10 in his affidavit-in-
opposition also admitted that the permission for constructing of his building is only G+3. In order to save the illegally constructed one floor i.e. G+4, the 62 respondent No.10 is seeking leave of the Court to fill up the ground floor below the road level. It is clear that the respondent No.10 had constructed his building at the gradient of the road. The road is at the hill slope. It is also very clear that the permit issued to the respondent No.10 vide letter of the Secretary, MUDA dated 24.09.2010 shows that the approval is granted only for construction of building for G+3 only for apartmental occupancy residential use. The said letter of the Secretary, MUDA dated 24.09.2010 reads as follows:-
"MEGHALAYA URBAN DEVELOPMENT AUTHORITY SHILLONG No.MUDA.BP/1227/2010-11/8 Dated: Shillong, the 24th September, 2010 To, Shri. Uday Narayan Shukla & Smti.Urmila Shukla, Oakland, Shillong Subject: Building Permission.
Reference: Your application No.Nil Dated 23rd August, 2010.
Sir/Madam, With reference to your application No.Nil, Dated 23rd August, 2010, I am to inform you that sanction has been granted for erection/re-erection of apartmental building at Oakland, Shillong, as per provisions of Meghalaya Town and Country Planning Act, 1973 and Meghalaya Building Bye-Laws, 2001 made there under:-
1. At least a week before alignment of the building and erection of footings, the Authority shall be intimated stating the commencement date and time as per format of commencement certificate so as to depute an authorized official to ensure the correct layout as per approved building plans.
2. Completion Certificate shall be sent to the undersigned to issue Occupancy Certificate.
3. This permission shall remain in force for a period of three years with effect from the date of issue.
4. As per the Electricity Rules part of the building shall have a minimum distance as follows:
a) Low and Medium voltage lines and service line 2.5m vertically and 1.2m horizontally.
b) High voltage lines upto including 33,000v, 3.7m vertically and 2.0m horizontally.
c) Extra High Voltage lines beyond 33,000v, 3.7m 63 vertically and 2.0 horizontally + 0.3m for every additional 33,000v or part thereof.
5. 4.50m/3.00m setback from the major/minor road R.O.W. and minimum side setbacks as per approved drawing from all neighbours, footpaths/drain etc. should be maintained.
6. Clear setback of 1.80m for septic tank, soak pit should be maintained.
7. Approval is given for Ground Plus 3 (Three) Floors only for apartmental occupancy residential use.
8. No deviation nor change of use is permissible from approved drawings.
9. Emergency/Fire exit should be provided in the building.
10. Parking space as indicated in the approved drawings should be maintained.
11. Portion "NOT ALLOWED" shall not be constructed.
12. (a) The owner above and Shri. J.P. Mahanta, Regn. MUDA/LTP/2009/ER 1988/24 are together responsible towards ensuring compliance alignment of condition 1, 5 & 6 above.
(b) The Consultant Engineer, Shri. J.P. Mahanta in this regard, is binded by this SANCTION to ensure safe and sound Civil Engineering practice at the time of execution and construction of the Building.
(c) The Owner with Shri. J.P. Mahanta are jointly responsible towards execution, construction and upt completion of the building (Sound Civil Engineering Practices i.e. usage of building materials/correct concrete mix, steel reinforcement details etc.).
(d) The Consultant Engineer, Shri. J.P. Mahanta shall ensure that construction of retaining walls, foundation etc. is as per IS 1904-1986.
Enclosed: 1 set of approved drawings Yours faithfully, Sd/-
Secretary, Meghalaya Urban Development Authority, Shillong."
24. The MUDA did not give any permission to the respondent No.10 to construct the parking in the ground floor and basement. It is also stated in the affidavit-in-opposition filed by the respondent No.10 that the revised building plan submitted by him (respondent No.10) is in complete conformity with the permissible F.A.R., maximum permissible building height and 64 maximum permissible number of storeys as per the Meghalaya Building Byelaws. As per the revised building plan submitted by the respondent No.10, the proposed revised plan consists of one floor for parking at the ground floor, ground floor which will be considered as a parking floor, basement, G+1 floor, G+ 2 floors and G+3 floors. It is the fact that the revised plan submitted by the respondent No.10 has not yet approved by the MUDA. Therefore, the construction of the building as per the revised building plan which is not yet approved by the MUDA is illegal. The respondent No.10 inspite of knowing quite well that the revised building plan submitted by the respondent No.10 had not been approved by the MUDA, the respondent No.10 started constructing the building by adding one more additional floor i.e. G+4 illegally. The still photograph of the building of the respondent 10 showing G+4 constructed in violation of the sanctioned or permission granted by the MUDA is shown as hereunder:-
NAME LOCATION Approved No. of Floors as per No of floors Remarks MUDA permission at Site Shri Uday Oakland G+3 G+4 Committee observed N.Shukla that an additional floor has been constructed at both the levels, beyond what was permitted.
Hence violation by one floor at both levels of the building.
The illegally constructed additional floor i.e. G+4 is to be 65 demolished.
Respondent No.11 Smti. Rajkumari Singha
25. The Chart mentioned above, indicates that MUDA granted permission to the respondent No.11-Smti. Rajkumari Singha for construction of building up to G+3 but the respondent No.11-Smti.Rajkumari Singha constructed 1 (one) more additional floor i.e. G+4 illegally. The respondent No.11 does not deny in her affidavit-in-opposition that the permission granted by the MUDA for constructing her building is only G+3. But the defence of the respondent No.11 in her affidavit-in-opposition is that under Byelaw 2.28 of the Byelaws, 2011, the building could be constructed up to the height of 15 meters and the building constructed by her (respondent No.11) is only 14.35 meters which is less than 15 meters. It appears from the affidavit-in- opposition of the respondent No.11 that for constructing the building less than 15 meters, permission of the MUDA is not required. It is a fact that the building is to be constructed as per the permission/sanctioned granted by the MUDA. It is also stated in para 3 of the affidavit-in-opposition of the respondent No.11 that permission granted by the MUDA is only G+3 but in a small portion of the floor area there is an open elevated portion below the ground floor and it is required to bring the ground floor of the building at one plain as per the sectional drawing which has a height of 2.35 meters. Therefore, it is clear that the respondent No.11 had constructed one more floor so as to bring the ground floor of the building at one plain in violation of permission granted and Byelaw 18. Therefore, the respondent No.11 had constructed one more floor below the ground floor. The respondent No.11 further stated in her affidavit-in-opposition that the building under construction has not been given any final finishing for being put in use for any purpose. Permit for constructing of the building by the respondent No.11 by the MUDA does not include the construction of extra floor like basement and ground floor 66 parking. Therefore, it is clear that the respondent No.11 had constructed one additional illegal floor i.e. G+4 against the permission granted by the MUDA for constructing of the building only for G+3. The still photograph showing illegal construction of one more floor i.e. G+4 is shown as hereunder:-
NAME LOCATION Approved No. of Floors as per No of Remarks MUDA permission floors at Site Shri Bivar Road G+3 G+4 Committee observed Rajkumari that an additional floor Sinha has been constructed partly beyond what was permitted. Hence part violation by one floor.
The additional illegal floor i.e. G+4 is to be demolished.
Respondent No.12 M/s Mentok Ri Project Pvt.Ltd.
26. The Chart mentioned above, indicates that the respondent No.12-M/s Mentok Ri-Project Pvt. Ltd. had committed rampant violation of the Byelaws as well as permission granted by the MUDA. The respondent No.12 67 is a company doing business of constructing apartment and selling the same to the others for profits. The respondent No.12 had constructed 6 (six) Blocks of multi-storied building i.e. A, B, C, D, E & F. For Block A, B & D permission granted is only for G+3, for Block C permission granted is only G+3 plus one uninhabitable area. The permission granted for Block E & F is only STP plus G+3. The respondent No.12 had illegally constructed additional floors for Blocks A, B, C & D i.e. above G+3. The respondent No.12 also admitted in their affidavit-in-opposition that under their letter dated 20.06.2013 requested the Secretary, MUDA, Shillong to consider their proposal to exclude the floors in the total height and give necessary permission. The said letter dated 20.06.2013 Annexure-3 to the affidavit-in-opposition reads as follows:-
"MENTOK RI PROJECT PVT. LTD.
18 Bivar Road, Shillong-793001 Dated: 20th June, 2013 The Secretary, MUDA, Shillong.
Respected Sir, We would like to apply for the extension of our building permission dated 29th November, 2010 ref. no. MUDA.BP/1223/2010-11/12-A we have already obtained permission for G+3 and would like to apply for extension of the new plans.
As per the contour profile, the site is itself having level difference of 22 meters from highest municipal approach road level to existing lowest point as per survey plan. Since as per soil report, foundation has to be at minimum 1.5/2mts below existing ground level & all foundations of lowest level has to be raft slab construction to avoid structural failure and hence, soil cutting was done to suit structural requirements of buildings.
Because of this reason we have got two floors, which are below the parking level, which are non-habitable as well as, not accessible. If these floors were considered in our total height of the building we would be at extreme loss. These floors also have retaining walls at its side creating ventilation problem and due to surface water flowing at regular intervals especially in the monsoons, we have to render the space non-habitable.
Our structural drawings, submitted along with this letter, conform to the highest standards of Engineering. The design of the building is also strong enough to take the entire load.68
So therefore we would request you to kindly consider our proposal and exclude these floors in the total height and give us permission above.
Thanking you, Yours faithfully, Sd/-
Director Sahil Singla"
27. It is admitted case of the parties that the respondent No.12 had constructed the said 6 (six) Blocks at the gradient of the road. It is the further case of the respondent No.12 that soil cutting (which is not permissible in violation of Byelaw 18) is required to be done to suit the structural requirements of the building and the respondent No.12 had already obtained permission for G+3 and would like for the extension of the new plan. The respondent No.12 made many justifications in the affidavit-in-opposition for constructing additional floors more than the permissible floor. But the fact remains that the respondent No.12 had constructed the building in clear violation of the permission granted by the MUDA as well as the Byelaws. What were stated in the affidavit-in-opposition by the respondent No.12 are only justifications for constructing the building in clear violation of the permission granted by the MUDA as well as the Byelaws, 2011. The respondent No.12 who requested the respondent No.3-MUDA to consider their proposal and to exclude some of the floors in the total height of the building had constructed the building at their peril before the respondent No.3- MUDA accepted the said proposal of the respondent No.12. It is clear from the permits issued to the respondent No.12 and records that the permission was granted as well as sanctioned plan was approved by the MUDA in blatant violation of Byelaw 18, Table-VI of Byelaw 30 and Table-VIII of Byelaw 40 such as, Maximum Permissible F.A.R. and Maximum Floor Area (coverage of plot area) and for such blatant violation, the Superintendent of Police, CBI, Shillong is being directed to investigate. The still photographs of Block A, B, 69 C, & D which show the construction of the additional floors in violation of the permission granted by the MUDA as well as Byelaws, 2011 are shown as hereunder:-
NAME LOCATION Approved No. of Floors as No of floors at Violation Remarks per MUDA permission Site M/s Montek Bivar Road Block A-G+3 Block A - 1 G+4 Block A-1 floor Block A-Violation by Ri-Project one floor Pvt. Ltd 70 NAME LOCATION Approved No. of Floors as per No of floors at Remarks MUDA permission Site M/s Bivar Road Block D-G+3 Block D-G+4 and Block D 2 floors Montek Ri- G+5 floor with Project shuttering only Pvt. Ltd REMARKS Block D - Violation by two floors. The G+4 level is complete but at the G+5 level shuttering is done. Hence violation by 2 Floors For the building at Block A G+4 which was constructed illegally, for Block B G+4 which was constructed illegally, for Block C 3 (three) floors i.e. G+4, G+5 and G+6 which are constructed illegally, for Block D 2 (two) floors i.e. G+4 and G+5 which are constructed illegally are to be demolished.
Respondent No.13 Shri. Maruf Elahi
28. The Chart mentioned above, indicates that MUDA granted permission to the respondent No.13-Shri. Maruf Elahi for construction of building up to G+4 but the respondent No.13-Shri.Maruf Elahi constructed 1 (one) more additional floor i.e. G+5 illegally. The respondent No.13 in his affidavit-in-opposition clearly stated that permission for construction of 71 building for residential building/apartment shall be in terms of the Byelaws i.e. Byelaw 30 of Table-VI and Byelaw 40 of Table-VIII, and for Permission of high rise building more than G+3, there should be plinth area of about 2000 meters and floor area ratio and maximum coverage should be as per Table-VIII. The MUDA in their affidavit-in-opposition did not mention any reason for granting permission to the respondent No.13 for constructing building more than G+3. The respondent No.3 further stated in his affidavit-in-opposition that even the ongoing construction having the permission for construction more than G+3 had been directed to stop and the construction should only be to the limit of G+3. The additional 2 (two) floors of the respondent No.13 i.e. G+4 and G+5 under construction had been stopped as per the interim order of this Court as well as the directions of the MUDA. The still photograph of the building of the respondent No.13 is shown as hereunder:-
72
NAME LOCATION Approved No. of Floors No of Remarks as per MUDA floors at permission Site Shri Maruf Bivar Road G+4 G+5 Committee Elahi observed that an additional floor has been constructed beyond what was permitted. Hence violation by one The Committee submitted its report taking into consideration of the permission granted by the MUDA that the respondent No.13 had constructed additional floor i.e. G+5. But as stated above, the Court had already directed to seal the record by the CBI for granting permissions in violation of the MUDA Byelaws. From submission of the Secretary, MUDA, who was present in the Court, it is clear that the permission granted by the MUDA to the respondent No.13 for constructing of building beyond G+3 is in clear infraction of the provisions of the Building Byelaw as discussed above. It is clear from the records and permission itself that the permission for constructing building upto G+4 to the respondent No.13 is in clear violation of Byelaws and Table discussed above. Accordingly, the 2 (two) additional floors i.e. G+4 and G+5 which are yet to be completed are to be demolished.
Respondent No.14 Smti.Beroline Khongshei
29. The Chart mentioned above, indicates that MUDA granted permission to the respondent No.14-Smti. Beroline Khongshei for construction of building up to G+3 but the respondent No.14-Smti.Beroline Khongshei constructed 1 (one) more additional floor i.e. G+4 illegally. The respondent No.14 had filed her affidavit-in-opposition. The respondent No.14 also annexed the permit issued by the MUDA for constructing of building up to G+3 vide letter dated 07.03.2011 of the Secretary, MUDA as Annexure-2 to the affidavit-in-opposition. The permit dated 07.03.2011 clearly indicated that the respondent No.14 is permitted to construct the building only for G+3. For 73 easy reference, the said letter dated 07.03.2011 is reproduced hereunder:-
"MEGHALAYA URBAN DEVELOPMENT AUTHORITY SHILLONG No.MUDA.BP/1374/2010-11/ Dated: Shillong, the __ March, 2011 To, Smti. Berolin Khongshei, Lum Kartic, Laban, Shillong.
Subject: Building Permission.
Reference: Your application No.Nil Dated 17th Dec. 2010.
Sir/Madam,
With reference to your application No.Nil, Dated th 17 December, 2010, I am to inform you that sanction has been granted for erection of building at Lum Kartic, Laban, Shillong, as per provisions of Meghalaya Town and Country Planning Act, 1973 and Meghalaya Building Bye-Laws, 2001 made there under:-
1. At least a week before alignment of the building and erection of footings, the Authority shall be intimated stating the commencement date and time as per format of commencement certificate so as to depute an authorized official to ensure the correct layout as per approved building plans.
2. Completion Certificate shall be sent to the undersigned to issue Occupancy Certificate.
3. This permission shall remain in force for a period of three years with effect from the date of issue.
4. As per the Electricity Rules part of the building shall have a minimum distance as follows:
a) Low and Medium voltage lines and service line 2.5m vertically and 1.2m horizontally.
b) High voltage lines upto including 33,000v, 3.7m vertically and 2.0m horizontally.
c) Extra High Voltage lines beyond 33,000v, 3.7m vertically and 2.0 horizontally + 0.3m for every additional 33,000v or part thereof.
5. 4.50m/3.00m setback from the major/minor road R.O.W. and minimum side setbacks as per approved drawing from all neighbours, footpaths/drain etc. should be maintained.
6. Clear setback of 1.80m for septic tank, soak pit should be maintained.
74
7. Approval is given for new construction of (i) Ground Plus 3 (Three) Floors only for commercial use (ii) Ground plus 3 (Three) Floors only for apartmental use.
8. No deviation nor change of use is permissible from approved drawings.
9. Parking spaces as indicated in the approved drawings should be maintained.
10. Emergency/Fire exit should be provided in the building.
11. Section E of the Meghalaya Building Bye-Law 2001 should be provided in the building.
12. The proposed construction of the motorable approach should not be more than 4m width and should be as per Executive Engineer, PWD (Road) terms and conditions.
13. Retaining Wall Designs to conform to relevant IS Codes and expansion joint should be provided according to design.
14. (a) The owner above and Shri. M. Kharkongor, Regn. CA/2001/39623, Meghalaya, Shillong are together responsible towards ensuring compliance alignment of condition 1, 5 & 6 above.
(b) The Consultant Engineer, Shri. R Nongdhar, Regn. MUDA/LTP/2009/ER 2007/19 in this regard, is binded by this SANCTION to ensure safe and sound Civil Engineering practice at the time of execution and construction of the Building.
(c) The Owner with Shri. M. Kharkongor and Shri. R. Nongdhar are jointly responsible towards execution, construction and upt completion of the building (Sound Civil Engineering Practices i.e. usage of building materials/correct concrete mix, steel reinforcement details etc.).
(d) The Consultant Engineer, Shri. R. Nongdhar shall ensure that construction of retaining walls, foundation etc. is as per IS 1904-1986.
Enclosed: 1 set of approved drawings Yours faithfully, Sd/-
Secretary, Meghalaya Urban Development Authority, Shillong."
30. It is clear from the said permit dated 07.03.2011 that the respondent No.14 was never granted permission to construct the basement as well as another floor for parking. The respondent No.14 is trying to take undue advantage of Byelaw 2.7 for giving justification for constructing one 75 more floor i.e. G+4 by stating that Byelaw 2.7 allows the construction of car parking and ground floor i.e. one floor and another floor i.e. basement. It is clear from the said permit dated 07.03.2011 that the respondent No.14 was not allowed to construct 2 (two) floors i.e. ground floor for parking and for basement. The still photograph showing the illegal construction of 1 (one) floor i.e. G+4 by the respondent No.14 is shown as hereunder:-
NAME LOCATION Approved No. of Floors as per No of Remarks MUDA permission floors at Site Smti Beroline Laban G+3 G+4 Committee observed Khongshei that one floor has been constructed beyond what was permitted.
Hence, violation by one floor.
The additional illegal floor i.e. G+4 is to be demolished.
Respondent No.15 Shri. Mohendro Rapsang
31. The Chart mentioned above, indicates that MUDA granted permission to the respondent No.15-Shri. Mohendro Rapsang for construction of building up to G+3 but the respondent No.15-Shri.Mohendro Rapsang constructed 2 (two) more additional floors i.e. G+4 and G+5. The respondent 76 No.15 also annexed the permit issued to him (respondent No.15) i.e. letter of the Secretary, MUDA dated 18.02.2011 in his affidavit-in-opposition. The said permit dated 18.02.2011 reads as follows:-
"MEGHALAYA URBAN DEVELOPMENT AUTHORITY SHILLONG No.MUDA.BP/214/2007-08/ Dated: Shillong, the __ February, 2011 To, Shri. Monendro Rapsang, M.G. Road European Ward, Shillong.
Subject: Building Permission.
Reference: Your application No.Nil Dated 30th June, 2010.
Sir/Madam,
With reference to your application No.Nil, Dated 30 June 2010, I am to inform you that sanction has been granted for erection of building at M.G. Road, European Ward (Frendale Complex), Shillong as per provisions of Meghalaya Town and Country Planning Act, 1973 and Meghalaya Building Bye-Laws, 2001 made there under:-
1. At least a week before alignment of the building and erection of footings, the Authority shall be intimated stating the commencement date and time as per format of commencement certificate so as to depute an authorized official to ensure the correct layout as per approved building plans.
2. Completion Certificate shall be sent to the undersigned to issue Occupancy Certificate.
3. This permission shall remain in force for a period of three years with effect from the date of issue.
4. As per the Electricity Rules part of the building shall have a minimum distance as follows:
a) Low and Medium voltage lines and service line 2.5m vertically and 1.2m horizontally.
b) High voltage lines upto including 33,000v, 3.7m vertically and 2.0m horizontally.
c) Extra High Voltage lines beyond 33,000v, 3.7m vertically and 2.0 horizontally + 0.3m for every additional 33,000v or part thereof.
5. 4.50m/3.00m setback from the major/minor road R.O.W. and minimum side setbacks as per approved drawing from all 77 neighbours, footpaths/drain etc. should be maintained.
6. Clear setback of 1.80m for septic tank, soak pit should be maintained.
7. Approval is given for Ground Plus 3 (Three) Floors only for office, Showroom & Restaurant use.
8. No deviation nor change of use is permissible from approved drawings.
9. Parking spaces as indicated in the approved drawings should be maintained.
10. Emergency/Fire exit should be provided in the building.
11. Lift as indicated in the approved drawing should be provided.
12. (a) The owner above and Shri. Minoo Verma, Regn. No.CA/86/9987, are together responsible towards ensuring compliance alignment of condition 1, 5 , 6, 11, 12 & 14 above.
(b) The Consultant Engineer, Shri. Naresh Matia, Regn. MUDA/LTP/2010/ER 1984/62 in this regard, is binded by this SANCTION to ensure safe and sound Civil Engineering practice at the time of execution and construction of the Building.
(c) The Owner with Shri. Minoo Verma and Shri. Naresh Matia are jointly responsible towards execution, construction and upt completion of the building (Sound Civil Engineering Practices i.e. usage of building materials/correct concrete mix, steel reinforcement details etc.).
(d) The Consultant Engineer, Shri. Naresh Matia shall ensure that construction of retaining walls, foundation etc. is as per IS 1904-1986.
Enclosed: 1 set of approved drawings Yours faithfully, Sd/-
Secretary, Meghalaya Urban Development Authority, Shillong."
32. From the above permit issued by MUDA, it is clear that the respondent No.15 was allowed to construct the building only up to G+3. As usual, the respondent No.15 by referring to Byelaw 2.28 stated that the multi- storied building can be constructed up to the height of 15 meters. The respondent No.15 also contended that the Byelaw 2.7 permits the building having the ground floor as car parking and basement. But the fact remains that the respondent No.15 was not permitted to construct 2 (two) additional 78 floors i.e. ground floor for car parking and basement. But the respondent No.15 was granted the permission for constructing the building of G+3 only. The still photograph showing the building of the respondent No.15 having 2 (two) more illegal additional floors i.e. G+4 and G+5 which are constructed in violation shown as hereunder:-
NAME LOCATION Approved No. of Floors as per No of Remarks MUDA permission floors at Site Shri Keating G+3 G+5 Committee felt that the Mohendra Road building has violated Rapsang permission by one floor (fourth floor) and columns at the fifth floor.
The 2 (two) additional illegal floors i.e. G+4 and G+5 are to be demolished.
Respondent No.16 Smti. Saini Pala
33. The Chart mentioned above, indicates that MUDA granted permission to the respondent No.16-Smti.Saini Pala for construction of building up to G+4 and the respondent No.16-Smti.Saini Pala constructed 1 79 (one) more additional floor i.e. G+5. The respondent No.16 stated in her affidavit-in-opposition that the building which is under construction meets and complies with all the required specifications, in terms of its height, maximum permissible FAR, maximum permissible coverage percentage of plot area, maximum floor permissible (excluding basement), maximum height permissible 9in meters) as provided under the provision 40, Table-VIII, of the Meghalaya Building Byelaws, 2011. It is the further case of the respondent No.16 that her building stands at the height of 18.288 meters (approx), which is lesser than 19 meters being the permissible height as per the Byelaws. Therefore, the respondent No.16 has not violated any of the provisions of the Meghalaya Byelaws, 2011. The permit issued to the respondent No.16 vide letter February, 2014 is reproduced hereunder:-
"MEGHALAYA URBAN DEVELOPMENT AUTHORITY SHILLONG No.MUDA.BP/2112/2013-14/ Dated: Shillong, the __ February, 2014 To, Smti. Saini Pala, Motinagar, Shillong.
Subject: Building Permission sanction under Byelaw 8 of the Meghalaya Building Byelaws, 2011.
Sir/Madam, With reference to your application No.Nil, Dated 10th September, 2013, I am to inform you that sanction has been granted for extension of building at Motinagar, Shillong as per provisions of Meghalaya Town and Country Planning Act, 1973 and Meghalaya Building Bye-Laws, 2011 made there under:-
1. A notice in writing (Commencement Form II) shall be sent to the Authority before commencement of the construction of the building as per bye-laws. Similar notice will be sent to the Authority at subsequent stages of construction.
2. Completion Certificate shall be sent to the undersigned to issue Occupancy Certificate.
3. This permission shall remain in force for a period of 3 years from the date of issue.80
4. The building shall not be constructed within minimum distance as specified in Indian Electricity Rules from voltage lines running above or on sides of the plot.
5. 4.50m/3.00m setback from the major/minor road R.O.W. and minimum side setbacks as per approved drawing from all neighbours, footpaths/drain etc. should be maintained.
6. Clear setback of 1.80m for septic tank, soak pit should be maintained.
7. Approval is given for Ground Plus 4 (Four) Floors only for apartmental use.
8. The owner will not proceed with the construction without having the supervision of an Architect/Engineer as the case may be. if he/she changes his Architect/Engineer, he/she shall inform the Authority about the appointment of new Architect/Engineer within 48 hours, with a proper certificate from him.
9. The construction will be undertaken as per sanctioned plan only and no deviation from the bye-laws will be permitted without prior sanction. Any deviation done against the bye-laws is liable to be demolished and the supervising Architect/Engineer engaged on the job will run the risk of being black listed.
10. No deviation nor change of use is permissible from approved drawings.
Other conditions:-
11.(a) The supervising consultant shall ensure that Rain Water Harvesting system has to be provided in the building.
(b) Parking space as indicated in the approved drawings should be maintained.
(c) Emergency staircase of regular in nature should be provided in the building.
(d) Safe & clean waste disposal and management should be adopted.
(e) Soft cover shall be provided in the plot.
Enclosed: 1 set of approved drawings Yours faithfully, Sd/-
Town Planning Officer, Meghalaya Urban Development Authority, Shillong."
34. On bare perusal of the said permit, it is clear that the said permit does not allow the respondent No.16 to construct her building up to 18.228 81 meters and the respondent No.16 did not mention in her affidavit-in-opposition what are the floor area ratio, maximum coverage of her building, slope profile of the plot and whether it is in compliance with Table-VIII of Byelaw 40, rather the respondent No.16 in her affidavit-in-opposition merely mentioned what are the maximum area permissible and maximum height mentioned in Table-VIII of Byelaw 40. The said permit does not mention compliance with essential requirements such as plinth area and floor area ratio and maximum coverage of the building mentioned in Byelaw 30 & Table-VI and Byelaw 40 & Table- VIII for granting permission for G+4. The respondent No.3 had stated in his 2 (two) affidavits-in-opposition that the ongoing construction is allowed only up to G+3. The said permission for constructing the building of the respondent No.16 upto G+4 is not valid. Therefore, the additional floors i.e. G+4 and G+5 are illegal. The still photograph of the respondent No.16 showing 2 (two) more additional illegal floors i.e. G+4 and G+5 is shown as hereunder:- 82
NAME LOCATION Approved No. of Floors as per No of Remarks MUDA permission floors at Site Smt. Saini Moti G+4 G+4 at Committee observed Pala Nagar road side that an additional floor and G+5 beyond what was at rear permitted has been side constructed in the rear side of the building.
Hence violation by one floor at the rear side The 2 (two) additional illegal floors i.e. G+4 and G+5 are to be demolished.
35. The case of the respondents No.13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27 & 28 in whose favour the MUDA, Shillong had granted permissions for construction of their buildings beyond G+3 are jointly considered so as to avoid repetition of facts and reasons in considering their case in separate paragraphs. At the outset, it is reiterated that the Secretary, MUDA, Shillong was all along present in all the dates of hearing of the present writ petition. Over and above, in the case of the respondent No.3- MUDA, Shillong mentioned in their two affidavits-in-opposition, this Court needed certain clarifications from the MUDA, Shillong and accordingly, this Court also put some questions to the Secretary, MUDA, Shillong for such clarifications. As stated above, this Court before passing the interim order dated 11.04.2014 in the present writ petition, also heard the 83 submission of Mr. SP Mahanta, learned senior counsel appearing for the respondent No.3-MUDA who stated that the special permission had been granted to some of the Govt. buildings such as, hospital and others. Mr. SP Mahanta, learned senior counsel appearing for the respondent No.3-MUDA further submitted that for special reason, the permissions had been granted for construction of buildings more than G+3. It is admitted case of the parties that in respect of the buildings constructed by the private respondents No.5- 28 there is no special reason. As per definition of Special Building under Byelaw 2.47, it means buildings with large scale activities at a time such as Hotel of 4 star categories and above, public institutions, hospitals, shopping malls with multiplexes, I.C.T./BPO's, educational institutions having a minimum plot area of 6000 sq.m. and a minimum plinth area of 3000 sq.m.
36. The two affidavits-in-opposition filed by the respondent No.3- MUDA did not mention the special reason under which the permissions for construction of buildings with more than G+3 were granted to the respondents No.13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27 and 28 . "Coverage" under Byelaw 2.11 means the quotient obtained in the terms of percentage by dividing the plinth areas of ground floor by plot area i.e. Coverage: Plinth area of the ground floor x 100 Plot area "Floor Area Ratio (F.A.R.)" under Byelaw 2.18 means the quotient obtained by dividing the total covered area (plinth area) on all floors by the area of a plot i.e. F.A.R.: Total covered area of all floors Plot area Table-VIII of Byelaw 40 prescribed the maximum permissible (F.A.R.), maximum permissible (coverage percentage of plot area) and maximum permissible floor for different types of buildings. For convenience, 84 Byelaw 40 is reproduced hereunder:-
"40. The specific Floor Area Ratio and Plot Coverage stipulations shall be as per Table VIII below.
TABLE VIII FLOOR AREA RATIO & MAXIMUM COVERAGE Sl. Type of Maximum Maximum Maximum Maximum Height No. Occupancy permissible permissible Floor permissible (In (F.A.R) (coverage permissible meters) percentage (excluding of plot area) basement) 1. 2. 3. 4. 5 6
1. Residential 2.0 50% 4 15 mts Bungalow RRRR) With ground floor parking 19 mts.
2. Residential 2.0 50% 4 15 mts Apartment With ground floor parking 19 mts 3 Institutional 1.5 40% 4 15 mts With ground floor parking 19 mts 4 Mercantile 2.0 60% 4 15 mts (Commercial) With ground floor parking 19 mts 5 Public or Semi- 2.0 50% 4 15 mts Public Business With ground floor parking 19 mts 6 Assembly 1.5 40% 4 15 mts With ground floor parking 19 mts 7 Industrial 1.5 40% 3 12 mts With ground floor parking 16 mts.
8 Storage 2.0 70% 3 12 mts With ground floor parking 16 mts 9 Hazardous 1.2 25% 2 8 mts with ground floor parking 12 mts.
Special Buildings 3.0 50% 6 23 mts
10 with ground floor
parking 27 mts.
11 Industrial 1.0 40% As per
Zone functional
(factory) requirement.
Note 1:- If the Ground Floor is exclusively earmarked for Covered Parking purposes, an additional floor with height as indicated above shall be permitted and the Ground Floor covered parking will not be counted for F.A.R. Note 2:- Mumty (stair cover) over staircase on top floor, atrium/cut outs Machine room for lift on top floor as required for the lift machine room installations shall not be taken for FAR calculations. Lift shaft (s) for one floor only shall be taken for FAR calculation.
Note 3:- Rockery, well and well structures, plant, nursery, 85 water-pool. Swimming pool (if uncovered), platform around a tree, water tank; fountain, bench, ramps, compound, wall, gate, slide, steps outside building, domestic washing place, swing, fire escape staircase, overhead water tank on top of buildings, underground suction tank having roof slab 0.50 mtr. above ground level, cooling tower of A.C. plant rest above the top roof slab and Drainage culvert, conduit, catch-pit, chamber, gutter, culvert on drains shall not be taken for FAR calculations."
36.1. From conjoint reading of Byelaws 2.11, 2.18, 30 & Table-VI and 40 & Table-VIII, it is crystal clear that the construction of high rise buildings above 2000 sq.m. plinth area and more than G+3 (RCC/Steel Frame Structure) could be permitted only after requirements mentioned in Table-VIII of Byelaw 40 i.e. maximum permissible (F.A.R.) and maximum (coverage percentage of plot area) as well as slope profile of the plot under Byelaw 18 are fulfilled. There is no question of granting permission for constructing of building i.e. residential bungalow/residential apartment beyond G+4 (excluding basement) even if the conditions of maximum permissible floor area and maximum permissible (coverage percentage of plot area), maximum height and slope profile of the plot under Byelaw 18 are fulfilled. The permits for construction of buildings G+4 and G+5 issued to the respondents No. 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 27 and 28 do not disclose the plinth area, coverage, floor area ratio and maximum floor permissible as well as slope profile of the plot and also did not disclose the fulfillment of other requirements mentioned in Table-VIII of Byelaw 40. This Court had anxiously considered the permits issued by the MUDA, Shillong in favour of the respondents No. 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 27 and 28 for construction of their buildings beyond G+3 and found that there is absolutely no indication that the requirements mentioned above for granting permissions for construction of buildings beyond G+3 had been complied with. It is well settled law that public orders, publicly made, in exercise of a statutory authority cannot be construed in light of 86 explanations subsequently given by the officer making order of what he meant public orders made by the public authorities are meant to have public effect. The public order cannot be construed in light of explanations subsequently made by the decision making authority. The impugned order or impugned public orders are to be examined with reference to the ground set out in the order itself. (i) The Apex Court in Commissioner of Police, Bombay v. Gordhandas Bhanji: AIR (39) 1952 SC 16 held that:
"9. ..... We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
(ii) The Apex Court in Mohinder Singh Gill & Anr v. The Chief Election Commissioner, New Delhi & Ors: (1978) 1 SCC 405 (CB) held that:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J in Commissioner of Police, Bombay v. Gordhandas Bhanji: AIR 1952 SC 16:
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow.
(iii) The Apex Court in Hindustan Petroleum Corpn. Ltd. 87 v. Darius Shapur Chenai & Ors: (2005) 7 SCC 627 held that:
"24. Submission of Mr Chaudhari to the effect that the circumstances pointed out in the counter-affidavit filed in WPMP No.27633 of 2003 should be held to be substitute for the reasons which the State must be held to have arrived at a decision, cannot be countenanced. When an order is passed by a statutory authority, the same must be supported either on the reasons stated therein or on the grounds available therfor in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit dehors the order or for that matter dehors the records.
25. In Commr. of Police v. Gordhandas Bhanji: 1952 SCR 135: AIR 1952 SC 16 it is stated: (SCR p.140):
"We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
(iv) The Apex Court in Bhikhunbhai Vithlabhai Patel & Ors v. State of Gujarat & Anr: (2008) 4 SCC 144 held that:
"35. Be that as it may, the impugned preliminary notification itself does not reflect formation of any opinion by the State Government that it had become necessary to make substantial modifications in the draft development plan and, for that reason, instead of returning in the plan, decided to publish the modifications so considered necessary in the Official Gazette along with the notice inviting suggestions or objections with respect to the proposed modifications. It is very well settled that public orders publicly made, in exercise of a statutory authority, cannot be construed in the light of explanations subsequently given by the decision- making authority. Public orders made by authorities are meant to have public effect and must be construed objectively with reference to the language used in the order itself. (See Commissioner of Police v. Gordhandas Bhanji: AIR 1952 SC 16 and Mohinder Singh Gill v. The Chief Election Commr.: (1978) 1 SCC 405: AIR 1978 SC
851)".
(v) The Apex Court in Rashmi Metaliks Limited & Anr v. Kolkata Metropolitan Development Authority & Ors: (2013) 10 SCC 95 held that:
88
"15. The impugned judgment-Rashmi Metaliks Limited & Anr v. Kolkata Metropolitan Development Authority, MAT No.1031 of 2013, decided on 11-7-2013 (Cal) is indubitably a cryptic one and does not contain the reasons on which the decision is predicated. Since reasons are not contained in the impugned judgment-Rashmi Metaliks Limited & Anr v. Kolkata Metropolitan Development Authority, MAT No.1031 of 2013, decided on 11-7-2013 (Cal) itself, it must be set aside on the short ground that a party cannot be permitted to travel beyond the stand adopted and expressed by it in its earlier decision."
For the reasons discussed above, this Court is of the considered view that the permissions granted by the respondent No.3- MUDA for construction of buildings beyond G+3 i.e. G+4 and G+5 in favour of the respondents No. 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 27 and 28 are illegal. This Court by an order dated 28.11.2014 passed in the present writ petition had already directed the Superintendent of Police, CBI, Shillong to seal the records relating to grant of permissions to the private respondents for more than G+3 without recording any special reason. Accordingly, the Superintendent of Police, CBI, Shillong had sealed the records.
Respondent No.17 Shri. Sanjib Das
37. The Chart mentioned above, indicates that MUDA had illegally granted permission to the respondent No.17-Shri. Sanjib Das for construction of additional floor i.e. G+4. The respondent No.17 had constructed the building up to G+3 only. The defence of the respondent No.17 regarding granting for additional floor i.e. G+4 in the affidavit-in- opposition is that the original sanctioned of the building plan vide Memo dated 10.10.2012 was for G+3 and basement floor i.e. car parking. Later on, the respondent No.17 had submitted the revised building plan for approval of G+4 i.e. (fourth floor) with the total height of 11.90 meters. It is the further case of the respondent No.17 that being seismic zone does not mean that 89 multi-storied building cannot be constructed. However, the respondent No.17 in his affidavit-in-opposition stated that buildings more than four storeys are to be constructed with the requirements provided for such high rise building mentioned in the Byelaws. The affidavit-in-opposition filed by respondent No.17 did not even mention the compliance of the requirements for constructing such high rise building mentioned in Table-VIII of Byelaw 40 and Table-VI of Byelaw 30 as well as slope profile of the plot required under Byelaw 18. It is not known to this Court as to why the respondent No.17 had concealed the fact as to the F.A.R. and coverage percentage of plot area as well as slope profile of the plot of the ongoing construction of the building which is now the subject matter of the present writ petition. The Committee mentioned above had submitted the report and still photograph of the ongoing construction of the building in question. As per the report and still photograph of the building under construction, it is clear that the respondent No.17 had constructed the building up to the permissible limit of G+3 but further construction had been stopped as per the interim order passed in the present writ petition. The still photograph of the building under construction of the respondent No.17 is shown as hereunder:-
So far as the respondent No.17 is concerned, he has not constructed building beyond G+3 and therefore, no demolition is required.
However, the respondent No.17 should not go for further construction of the 90 building in question. The permission granted by the respondent No.3-MUDA for construction of building beyond G+3 is illegal for the aforesaid reasons.
Respondent No.18 Manchin Fincon Pvt. Ltd.
38. The Chart mentioned above, indicates that MUDA had illegally granted permission to the respondent No.18-Manchin Fincon Pvt. Ltd. for construction of the building beyond G+3 by allowing to construct 2 (two) additional floors i.e. basement (sic one floor) and G+4. The respondent No.18 in their affidavit-in-opposition simply quoted Byelaws 2.28 and 40. But the respondent No.18 in their affidavit-in-opposition did not mention clearly the permissible floor area, maximum permissible coverage area and slope profile of the plot of the building under construction and also the permit dated 28.03.2012 issued by the MUDA did not disclose that the building in question, under construction, of the respondent No.18 had fulfilled all requirements for granting the permission for construction of building beyond G+3. For the reasons discussed above (more particularly above paras 35 &
36) the permission granted to the respondent No.18 for construction of 2 (two) additional floors i.e. basement (sic one floor) and G+4 is illegal and as per the report submitted by the Committee which had not been denied by the respondent No.18, the respondent No.18 had constructed 2 (two) additional floors i.e. basement (sic one floor) and G+4. The so called basement of the building of the respondent No.18 is not the basement mentioned in Byelaw 2.7 but it is ground floor. The still photograph taken by the Committee in presence of the respondent No.18 on 10.04.2014 is shown as hereunder:-
91
Accordingly, 2 (two) additional illegal floors i.e. G+3 and G+4 constructed by the respondent No.18; in other words, the additional floor G+3 shown in the photograph i.e. in the case of the respondent No.18 floor + 3 (shown in the photograph) should be G+4 and G+4 (shown in photograph) in the case of the respondent No.18, should be G+5 inasmuch as while counting the floors of the building the basement floor (sic ground floor) was excluded by the Committee for taking photograph of the building, are to be demolished.
Respondent No.19 Shri. Kenneth Mathew Lyngdoh
39. The Chart mentioned above, indicates that MUDA had granted permission to the respondent No.19-Shri.Kenneth Mathew Lyngdoh for construction of 2 (two) additional floors i.e. G+4 and G+5. The permission granted to the respondent No.19 for construction of 2 (two) additional floors i.e. G+4 and G+5 is illegal for the aforesaid reasons (more particularly above paras 35 & 36). But the respondent No.19 had constructed his building up to the permissible limit of G+3 and just started to put up pillar for the additional floor i.e. G+4. The still photograph taken by the Committee in presence of 92 the respondent No.19 on 10.04.2015 is shown as hereunder:-
Accordingly, so far as the respondent No.19 is concerned only the pillars above G+3 for construction of additional floor i.e. G+4 are to be demolished.
Respondent No.20 Shri. Sanjay Jhunjhunwala
40. The Chart mentioned above, indicates that MUDA had granted permission to the respondent No.20-Shri.Sanjay Jhunjhunwala for construction of additional floors to the respondent No.20 i.e. G+4 in the Rear Block of the building and G+5 in the Front Block of the building. In the affidavit-in-opposition filed by the respondent No.20 simply quoted Byelaws 93 2.28 and 40. Further, the affidavit-in-opposition filed by the respondent No.20 stated that high rise building is a building having more than four storeys and more than 15 meters height. It is also stated for the purpose of F.A.R. and floor number calculations, a basement floor as defined in Byelaw 2.7 and a ground floor covered parking area are excluded. But the affidavit- in-opposition filed by the respondent No.20 did not mention the fulfillment of essential conditions such F.A.R., permissible coverage under Table-VIII of Byelaw 40 and slope profile of the plot for giving permission for constructing high rise building beyond G+3. It may be reiterated that after fulfilling the conditions such as F.A.R. and permissible coverage mentioned in Column 3 and 4 of Table-VIII of Byelaw 40, building can have the maximum height of 15 meters. Therefore, without complying the requirements mentioned in Column 3 and 4 respectively of Table-VIII of Byelaw 40, the building cannot be constructed up to the height of 15 meters. As per the report submitted by the Committee as well as the still photograph of the building of the respondent No.20 under construction, it is clear that the respondent No.20 had constructed additional floor i.e. G+4 in the Rear Block as shown hereunder:-
94
So far as the respondent No.20 is concerned, the additional floor i.e. G+4 in the Rear Block shown in the still photograph is to be demolished.
Respondent No.21 Modrick Nongkynrih
41. The chart mentioned above, indicates that respondent No.3-
MUDA granted permission to the respondent No.21-Shri.Modrick Nongkynrih for construction of building for G+5. But the respondent No.21 had not yet started construction of his building. The permission granted to the respondent No.21 for construction of 2 (two) additional floors i.e. G+4 and G+5 is illegal. The photograph taken by the Committee of the proposed site for construction of building for G+5 taken on 10.04.2015 is shown hereunder:-
95
As there is no construction on the site belonging to respondent No. 21, the question of demolition does not arise.
Respondent No.22 Bavin Deren Marbaniang
42. The chart mentioned above, indicates that respondent No.3-
MUDA granted permission to the respondent No.22-Shri.Bavin Deren Marbaniang for construction of building for B, G+4. For the reason discussed above (more particularly above paras 35 & 36), the permission for construction of additional floors i.e. G+4 and basement is illegal and also the permit does not mention the special reason required for granting permission for building beyond G+3 and also does not show that the requirements for granting such permission as discussed above are fulfilled. The affidavit-in- opposition filed by the respondent No.22 simply quoted Byelaws 2.28 and 40 and also that the multi-storied building having more than four storeys and 15 meters height could be constructed. But the affidavit-in-opposition does not mention the plinth area, F.A.R., permissible coverage and slope profile of the plot of the building of the respondent No.22 under construction. The permit issued by the MUDA dated 15.06.2012 to the respondent No.22 for construction of the building for ground plus 4 (four) floors is a stereo type one. The respondent No.22 had constructed 2 (two) additional floors i.e. G+3 counted without basement and put some pillars for construction of additional floor i.e. G+4 counted with basement. The basement is counted as one floor inasmuch as the basement constructed by the respondent No.22 is not a basement mentioned in Byelaw 2.7 but it is ground floor. The 96 still photograph taken by the Committee of the building of the respondent No.22 under construction on 10.04.2015 is shown as hereunder:-
The additional 2 (two) floors i.e. G+4 which is shown as G+3 in the photograph and pillars put up for construction of G+5 are to be demolished.97
Respondent No.23 Shri.Lamboklang Mylliemngap
43. The chart mentioned above, indicates that respondent No.3-
MUDA had granted permission for construction of 2 (two) additional floors i.e. G+4 and G+5 to the respondent No.23-Shri.Lamboklang Mylliemngap. For the aforesaid reason (more particularly above paras 35 & 36), the permission granted by the MUDA to the respondent No.23 for construction of 2 (two) additional floors i.e. G+4 and G+5 is illegal. The permit issued by the MUDA to the respondent No.23 for construction of building with additional floors i.e. G+4 and G+5 did not give any special reason for allowing the respondent No.23 to construct the additional floors i.e. G+4 and G+5. It is very clear from the record that the respondent No.3-MUDA while granting permission to the respondent No.23 for construction of building up to G+5, the requirements for granting permission for such high rise building discussed aforesaid are not fulfilled. In the affidavit-in-opposition filed by the respondent No.23 he did not even mention the materials/reasons to show that the permission for such high rise building granted to the respondent No.23 had fulfilled the requirements for granting permission for such high rise building under the Byelaws. The affidavit-in-opposition filed by the respondent No.23 is very cryptic. The respondent No.23 constructed 2 (two) additional floors i.e. G+4 and G+5 illegally. The still photograph, taken by the Committee, of the building of the respondent No.23 under construction taken on 10.04.2015 is shown hereunder:-
98
The illegally constructed 2 (two) additional floors i.e. G+4 and G+5 shown in the photograph above are to be demolished.
Respondent No.24 Dr. (Mrs) T.A. Sohklet
44. The chart mentioned above, indicates that respondent No.3-
MUDA granted permission to the respondent No.24-Dr. (Mrs) T.A. Sohklet for construction of building up to B, G+4. The permission is illegal for the aforesaid reasons. But the respondent No.24 had just started constructing G+1. The still photograph, taken by the Committee, of the building of the respondent No.24 under construction on 10.04.2015 is shown as hereunder:-
99
So far as the respondent No.24 is concerned, she (respondent No.24) has not yet constructed any illegal floor and therefore, no demolition is required. However, the respondent No.24 shall not raise further construction, till proper sanction is granted by the MUDA.
Respondent No.25 Shri. Allen Wood Swer
45. The chart mentioned above, indicates that respondent No.3-
MUDA had granted permission to the respondent No.25-Shri.Allen Wood Swer to construct additional floor i.e. so called basement B, G+3. The permission for construction of the building to the respondent No.35 is illegal for the aforesaid reasons. The so called basement constructed by the respondent No.25 is not the basement mentioned in Byelaw 2.7 but it is ground floor. "Basement or Cellar" of Byelaw 2.7 means the lower storey of a 100 building which is a minimum of 2/3rd of the floor height below the finished ground level. Neither the permit issued by the respondent No.3-MUDA nor the affidavit-in-opposition filed by the respondent No.25 does mention that the so called basement constructed by the respondent No.25 is a basement in true sense of the term and in fact, the basement is a ground floor. Therefore, the so called G+3 would be additional illegal floor i.e. G+4. The still photograph, taken by the Committee, of the building constructed by the respondent No.25 on 10.04.2015 in presence of the respondent No.25 is shown as hereunder:-
For the respondent No.25 is concerned, the additional floor i.e. G+4 which is shown as G+3 in the photograph above is to be demolished inasmuch as, the basement shown in the photograph above is the ground floor.
Respondent No.26 Secretary Islamia Secondary School
46. The chart mentioned above, indicates that respondent No.3-
MUDA had granted permission to the respondent No.26-Secretary, Islamia Secondary School for construction of building up to G+3 only. However, the 101 Committee submitted the report that there are some deviations in the construction of building that the ground floor at its rear side appears to be not fit for habitation and needs to be discarded by filling it as its floor level seems to be lower than the bed level of the drain adjoining it. The alignments of the classrooms are not satisfactory and not fit for an educational institution as no natural ventilation and lighting is provided to each classroom. There is major deviation from the approved drawings. The plot coverage has increased and some panels of slab at the first floor level of the rear side are to be dismantled. Open Space for children is not available. Building not fit for school. But the respondent No.26 had not constructed any additional floor. The still photograph, taken by the Committee, of the building of the respondent No.26 on 10.04.2015 in presence of the respondent No.26 is shown as hereunder:-
102
So far as the respondent No.26 is concerned, the respondent No.26 had not yet constructed the additional floor i.e. G+4 and accordingly, demolition of the ongoing construction is not required. However, the MUDA is to examine as to whether the construction of the building is as per the plan approved by it.
Respondent No.27 Shri. P. Dhar
47. The chart mentioned above, indicates that respondent No.3-
MUDA granted permission to the respondent No.27-Shri.P.Dhar for construction of 1 (one) additional floor i.e. G+4. For the aforesaid reason, the permission for construction of 1 (one) additional floor to the respondent No.27 is illegal. The permit dated 25.06.2012 issued to Smti.Fidelia Kharkongor for construction of the building in question does not mention any special reason for construction of the building up to G+4. For easy reference, the permit issued to Smti.Fidelia Kharkongor is quoted hereunder:-
"MEGHALAYA URBAN DEVELOPMENT AUTHORITY SHILLONG No.MUDA.188/440/2005-06/17 Dated: Shillong, the 25th June, 2012 To, Smti. Fidelia Kharkongor, Kench's Trace, Shillong.103
Subject: Building Permission sanction under Byelaw 8 of the Meghalaya Building Byelaws, 2011.
Sir/Madam, With reference to your application No.Nil, Dated 25th April, 2012, I am to inform you that sanction has been granted for extension of building at Kench's Trace, Shillong as per provisions of Meghalaya Town and Country Planning Act, 1973 and Meghalaya Building Bye-Laws, 2011 made there under:-
1. A notice in writing (Commencement Form II) shall be sent to the Authority before commencement of the construction of the building as per bye-laws. Similar notice will be sent to the Authority at subsequent stages of construction.
2. Completion Certificate shall be sent to the undersigned to issue Occupancy Certificate.
3. This permission shall remain in force for a period of 3 years from the date of issue.
4. The building shall not be constructed within the minimum distance as specified in Indian Electricity Rules from voltage lines running on sides of the plot.
5. 4.50m/3.00m setback from the major/minor road R.O.W. and minimum side setbacks as per approved drawing from all neighbours, footpaths/drain etc. should be maintained.
6. Clear setback of 1.80m for septic tank, soak pit should be maintained.
7. Approval is given for extension of 2nd, 3rd & 4th floor only for Apartmental use.
8. The owner will not proceed with the construction without having the supervision of an Architect/Engineer as the case may be. if he/she changes his Architect/Engineer, he/she shall inform the Authority about the appointment of new Architect/Engineer within 48 hours, with a proper certificate from him.
9. The construction will be undertaken as per sanctioned plan only and no deviation from the bye-laws will be permitted without prior sanction. Any deviation done against the bye-laws is liable to be demolished and the supervising Architect/Engineer engaged on the job will run the risk of being black listed.
10. No deviation nor change of use is permissible from approved drawings.
Other conditions:-
11.(a) The Supervising Consultant shall submit "Form I (A) of Meghalaya Building Byelaws 2011" before condition no.1 of the building permission sanction.104
(b) The supervising consultant shall ensure that Rain Water Harvesting system has to be provided in the building.
(c) Existing open parking spaces should be maintained.
(d) Emergency/ fire exit should be provided in the building.
(e) Soft cover shall be provided in the plot.
Enclosed: 1 set of approved drawings Yours faithfully, Sd/-
Town Planning Officer, Meghalaya Urban Development Authority, Shillong."
The respondent No.27 P.Dhar had mentioned in his affidavit-in- opposition that the said building belonged to Smti.Feidelia Kharkongor and Smit.Wandabha C. Kharkongor and they sold the same to Smti.Indashisha Kharduit under Sale Deed dated 07.08.2012. Smti.Indashisha Kharduit is the wife of the respondent No.27-Shri.P.Dhar. The wife of the respondent No.27 Smti.Indashisha Kharduit also filed affidavit-n-opposition in the present case on behalf of the respondent No.27-Shri.P.Dhar. The still photograph of the ongoing construction of the building of the respondent No.27-Shri.P.Dhar, who claims that the said building belongs to his wife, taken by the Committee on 10.04.2014 is shown as hereunder:-
48. It is admitted case of both the parties that one additional floor i.e. G+4 had been constructed and the illegally constructed additional floor 105 i.e. G+4 is also shown in the photograph above. Smti.Indashisha Kharduit wife of the respondent No.27 filed the affidavit-in-opposition in the present writ petition on behalf of the respondent No.27. Therefore, whatever be the case, the respondent No.27 and his wife Smti.Indashisha Kharduit had given sufficient opportunity to put up their case by filing affidavit-in-opposition in the present case. The illegally constructed floor i.e. G+4 is to be demolished.
Respondent No.28 Shri. Nicholas Wahlang
49. The chart mentioned above, indicates that respondent No.3- MUDA granted permission to the respondent No.28-Shri.Nicholas Wahlang to construct building with 2 (two) additional floors i.e. G+4 and G+5. For the aforesaid reason discussed above (more particularly above paras 35 & 36), the construction of 2 (two) additional floors i.e. G+4 and G+5 are illegal. The respondent No.28 in the affidavit-in-opposition stated that the construction of the building is in strict compliance of the permission granted by the MUDA. But the question is that is the said permission granted to the respondent No.28 for construction of building of more than G+3 i.e. G+4 and G+5 in compliance with the requirements for granting permission for such high rise building under the Byelaws?. Para 4.5 of the affidavit-in-opposition filed by the respondent No.28 reads as follows:-
"4.5 That subsequently to make the project of Hotel viable in terms of the tourist inflow in the city of Shillong and employment generation, the sister of your deponent decided to add two more floors to the existing G+3 construction which is also permissible in terms of prevailing Meghalaya Building Byelaws 2011. Accordingly acting upon the application of Smti. Merita Wahlang, the Additional Deputy Commissioner (Rev) granted a No Objection Certificate for construction of 4th and 5th Floor in the proposed hotel building subject to grant of permission by MUDA vide No Objection Letter No. L.14/10(18)2006/55 dated Shillong the 29th May, 2008. Subsequent to the same in due exercise of statutory authority, building permission sanction for extension of 4th and 5th floors in alteration to the already approved G+3 construction as already granted vide letter dated 28th Nov. 2007 was issued in favour of 106 your humble Deponent sister Smti.Merita Wahlang by the appropriate authority of MUDA vide permission No.MUDA.BP/462/2006-07/46 dated Shillong the 16th March, 2012."
The permit dated 16.03.2012 for construction of 2 (two) additional floors i.e. 4th and 5th floors read as follows:-
"MEGHALAYA URBAN DEVELOPMENT AUTHORITY SHILLONG No.MUDA.BP/462/2006-07/46 Dated: Shillong, the 16th March, 2012 To, Smti. Merita Wallang, Lachumiere, Shillong.
Subject: Building Permission sanction under Byelaw 8 of the Meghalaya Building Byelaws, 2011.
Sir/Madam, With reference to your application No.Nil, Dated 16th January, 2012, I am to inform you that sanction has been granted for erection/re-erection of building at Lachumiere, Shillong as per provisions of Meghalaya Town and Country Planning Act, 1973 and Meghalaya Building Bye-Laws, 2011 made there under:-
1. A notice in writing (Commencement Form II) shall be sent to the Authority before commencement of the construction of the building as per bye-laws. Similar notice will be sent to the Authority at subsequent stages of construction.
2. Completion Certificate shall be sent to the undersigned to issue Occupancy Certificate.
3. This permission shall remain in force for a period of 3 years from the date of issue.
4. The building shall not be constructed within the minimum distance as specified in Indian Electricity Rules from voltage lines running on sides of the plot.
5. 4.50m/3.00m setback from the major/minor road R.O.W. and minimum side setbacks as per approved drawing from all neighbours, footpaths/drain etc. should be maintained.
6. Clear setback of 1.80m for septic tank, soak pit should be maintained.
7. Approval is given as under: (i) extension of 4th & 5th floor commercial (Hotel) and alteration of the approved G+3 commercial (Hotel) building as per No.MUDA.BP/462/2006-07/6 dated 28.11.2007.107
(ii) Change of use from Office cum Residential to Commercial (Hotel) vide building permission sanction No.MUDA.BP/356/2006-07/2 dated 18.1.2007.
8. The owner will not proceed with the construction without having the supervision of an Architect/Engineer as the case may be. if he/she changes his Architect/Engineer, he/she shall inform the Authority about the appointment of new Architect/Engineer within 48 hours, with a proper certificate from him.
9. The construction will be undertaken as per sanctioned plan only and no deviation from the bye-laws will be permitted without prior sanction. Any deviation done against the bye-laws is liable to be demolished and the supervising Architect/Engineer engaged on the job will run the risk of being black listed.
10. The consultant Architect/Engineer is wholly responsible towards the construction & structural safety of the building.
11. No deviation nor change of use is permissible from approved drawings.
Other conditions:-
11.(a) The consultant Architect/Engineer shall ensure that Rain Water Harvesting system and Waster water treatment system read with condition 14 & 15 of building permission sanction No.MUDA.BP/462/2006-07/6 dated 28.11.2007 has to be provided and should be complied with.
b) Safe & clean sold waste disposal and management should be adopted read with condition 13 of building permission sanction No.MUDA.BP/462/2006-07/6 dated 28.11.2007.
(c) Parking spaces as indicated in the approved building plans should be maintained.
(d) Facilities for persons with disabilities as per section E of the Meghalaya Building Byelaws 2011 should be provided.
(e) Soft cover shall be provided in the plot. Deciduous tree shall be planted along the perimeter of the plot facing the St. Anthony's College and the Mizo Church.
(f) Terms & conditions No.10, 11, 12 & 17 of the Building permission Sanction No.MUDA.BP/462/2006-07/6 dated 28th November, 2007 should be strictly adhered to.
Enclosed: 1 set of approved drawings Yours faithfully, Sd/-
Town Planning Officer, Meghalaya Urban Development Authority, Shillong."
The permit dated 16.03.2012 does not indicate the fulfillment of 108 F.A.R., permissible coverage as provided under Table-VIII of Byelaw 40 and slope profile of the plot. Over and above, F.A.R. and permissible coverage of the building of the respondent No.28 under construction are not disclosed in the affidavit-in-opposition. For the foregoing reasons, more particularly, the reason mentioned in above paras 35 & 36, permission granted by the respondent No.3-MUDA for construction of 2 (two) additional floors for which no special reason is given is illegal. The respondent No.28 had constructed 2 (two) additional floors i.e. G+4 and G+5. The still photograph, taken by the Committee, of the building of the respondent No.28 under construction in presence of the respondent No.28 on 10.04.2015 is shown hereunder:- 109
The 2 (two) additional illegal floors i.e. G+4 and G+5 are to be demolished.
50. The State of Meghalaya was part of the erstwhile State of Assam. After the State of Meghalaya attained the Statehood on 21.01.1972, various Acts and Statutes were legislated by way of adoption of the Acts and Statutes of the State of Assam. The Meghalaya Town and Country Planning Act, 1973 was enacted to provide for the development of towns and country sides of the State of Meghalaya. The Meghalaya Town and Country Planning Act, 1973 is pari-materia with the Assam Town and Country Planning Act, 1959. Section 30B: Power of the demolition of building and Section 31:
Penalty for violation of the Assam Town and Country Planning Act, 1959 are pari-materia with Section 30B: Power of the demolition of building and Section 31: Penalty of violation of the Meghalaya Town and Planning Act, 1973.
Byelaws 7 and 11 of the Byelaws, 2011 prescribe the action to be taken up in the case of deviation during building construction and also the penalty and offence for violation of building permission respectively. Section 30B and Byelaw 11(ii) empowers the authority means Meghalaya Urban Development 110 Authority to take suitable action including demolition of unauthorized works.
Nowhere in the Meghalaya Town and Country Planning Act, 1973 and Byelaw, 2011, provides that unauthorized construction or deviations during building construction are compoundable offence. The Division Bench of the Gauhati High Court in Priyanka Estate International (P) Ltd. & Ors v. State of Assam & Ors: 2006 (3) GLT 1 held that unauthorized construction being non-compoundable under the Byelaws, the same could not be regularized by levying penalty for such illegal construction; and accordingly, ordered for demolition of the construction in violation of the building permission. The Apex Court also dismissed the appeal filed against the said judgment and order of the Division Bench of the Gauhati High Court in Priyanka Estate International (P) Ltd. case. In Priyanka Estate International (P) Ltd. & Ors v. State of Assam & Ors reported in (2010) 2 SCC 27, the Apex Court in Priyanka Estate International (P) Ltd. case (Supra) had also discussed the individual vis-à-vis public rights. The Apex Court further held that it is a sound policy to punish the wrongdoer and the unauthorized construction should be demolished. Paras 55, 56, 57, 58, 59, 63 & 64 of the SCC in Priyanka Estate International (P) Ltd. case (Supra) read as follows:-
"55. It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free.
Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the Builder.
56. Even though on earlier occasions also, under similar circumstances, there have been judgments of this Court which should have been a pointer to all the builders that raising unauthorised construction never pays and is against the interest of society at large, but, no heed has been given to it by the builders. Rules, regulations and bye-laws are made by Corporation or by Development Authorities, taking in view the 111 larger public interest of the society and it is a bounden duty of the citizens to obey and follow such rules which are made for their benefit. If unauthorised constructions are allowed to stand or given a seal of approval by court then it is bound to affect the public at large. An individual has a right, including a fundamental right, within a reasonable limit, it inroads the public rights leading to public inconvenience, therefore, it is to be curtailed to that extent.
57. The jurisdiction and power of courts to indemnify a citizen for injuries suffered due to such unauthorised or illegal construction having been erected by builder/coloniser is required to be compensated by them. An ordinary citizen or a common man is hardly equipped to match the might and power of the builders.
58. In the case in hand, it is noted that a number of occupiers were put in possession of the respective flats by the builder/developer constructed unauthorisedly in violation of the laws. Thus, looking to the matter from all angles it cannot be disputed that ultimately the flat owners are going to be the greater sufferers rather than builder who has already pocketed the price of the flat.
59. It is a sound policy to punish the wrong-doer and it is in that spirit that the courts have moulded the reliefs of granting compensation to the victims in exercise of the powers conferred on it. In doing so, the courts are required to take into account not only the interest of the petitioners and the respondents but also the interest of public as a whole with a view that public bodies or officials or builders do not act unlawfully and do perform their duties properly.
63. We also feel it necessary and expedient to direct the Respondent-authorities that if ultimately, the flat owners, whose flats are going to be demolished shall be given at least three months' time to vacate the same. This would enable them to mitigate the losses that may be incurred by them. We accordingly direct so.
64. In the light of the foregoing discussions, these appeals are dismissed with the directions contained hereinabove. The Respondent-authorities shall be at liberty to proceed with demolition of half of the 5th floor, if not ultimately compounded; 6th, 7th and 8th floors as mentioned hereinabove."
51. The Apex Court in M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu & Ors: (1999) 6 SCC 464 held that the unauthorized construction cannot be compounded. The Apex Court further held that not only demolition of such unauthorized construction shall be ordered but also an enquiry should be ordered. Paras 23, 24, 73, 74 & 81 of the SCC in M.I. Builders Pvt. Ltd. 112 case (Supra) read as follows:-
"23. The Development Act also contains provision for penalties and the power of the LDA to demolish buildings and to stop development in case of contravention of the provisions of this Act. When the Development Act is in operation, then under Section 59 of this Act, certain functions of the U.P. Municipal Corporation Act, 1959 become inoperative so far as these are relevant for the purpose:
"59. Repeal etc., and Savings. - (1)(a) The operation of clause (c) of Section 5, Sections 54, 55 and 56, clause (xxxiii) of Section 114, sub- section (3) of Section 117, clause (c) of sub-section (1) of Section 119..."
24. The provisions of the U.P. Regulation of Buildings Operation Act, 1958 also become inoperative by virtue of Section 59 of the Development Act.
73. The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots.
74. In the present case we find that the builder got an interim order from this Court and on the strength of that order got sanction of the plan from the Mahapalika and no objection from LDA. It has no doubt invested considerable amount on the construction which is 80% complete and by any standard is a first class construction. Why should the builder take such a risk when the interim order was specific that the builder will make construction at its own risk and will not claim any equity if the decision in the appeal goes against it? When the interim order was made by this Court the Mahapalika and the State 113 Government were favouring the builder. As a matter of fact the Mahapalika itself filed appeals against the impugned judgment of the High Court. Perhaps that gave hope to the builder to go ahead with the construction and to take the risk of getting the construction demolished and restoring the park to its original condition at its own cost. The builder did not foresee the change in stand not only of the Mahapalika but also of the State Government. It also, as it would appear, over-rated its capacity to manage with the State Government to change the land use of the park. The builder is not an innocent player in this murky deal when it was able to get the resolutions of the Mahapalika in its favour and the impugned agreement executed. Now, construction of shops will bring in more congestion and with that the area will get more polluted. Any commercial activity now in this unauthorised construction will put additional burden on the locality. The primary concern of the Court is to eliminate the negative impact the underground shopping complex will have on the environment conditions in the area and the congestion that will aggravate on account of increased traffic and people visiting the complex. There is no alternative to this except to dismantle the whole structure and restore the park to its original condition leaving a portion constructed for parking. We are aware that it may not be possible to restore the park fully to its original condition as many trees have been chopped off and it will take years for the trees now to be planted to grow. But a beginning has to be made.
81. A number of cases coming to this Court pointing to unauthorised constructions taking place at many places in the country by builders in connivance with the Corporation/Municipal officials. In a series of cases, this Court has directed demolition of unauthorised constructions. This does not appear to have any salutary effect in cases of unauthorised construction coming to this Court. While directing demolition of unauthorised construction, the court should also direct inquiry as to how the unauthorised construction came about and to bring the offenders to book. It is not enough to direct demolition of unauthorised construction, where there is clear defiance of law. In the present case, but for the observation of the High Court, we would certainly have directed an inquiry to be made as to how the project was conceived and how the agreement dated 4-11-1993 came to be executed."
52. The Apex Court in Friends Colony Development Committee v. State of Orissa & Ors: (2004) 8 SCC 733 held that deliberate deviations does not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. The Apex Court further held that illegal/unauthorized building activities in Cuttack are so rampant as to be 114 noticed judicially, may suo motu register a public interest litigation and commence monitoring the same by issuing directions so as to curb such tendency and fixing liability and accountability. Paras 21, 22, 24 and 28(7) of the SCC in Friends Colony Development Committee's case (Supra) read as follows:-
"21. The conduct of the builder in the present case deserves to be noticed. He knew it fully well what was the permissible construction as per the sanctioned building plans and yet he not only constructed additional built-up area on each floor but also added an additional fifth floor on the building, and such a floor was totally unauthorised. In spite of the disputes and litigation pending he parted with his interest in the property and inducted occupants on all the floors, including the additional one. Probably he was under the impression that he would be able to either escape the clutches of the law or twist the arm of the law by some manipulation. This impression must prove to be wrong.
22. In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private owner ship of the property may not be justified.
24. Structural and lot area regulations authorise the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship 115 which is posed to the occupants of the building. (For a detailed discussion reference may be had to the chapter on "Zoning and Planning" in American Jurisprudence, 2d, Vol. 82.)
28. ***** ***** ***** ***** ***** ***** (7) The High Court, if it feels that illegal/unauthorized building activities in Cuttack are so rampant as to be noticed judicially, may suo motu register a public interest litigation and commence monitoring the same by issuing directions so as to curb such tendency and fixing liability and accountability."
53. The Apex Court in Mahendra Baburao Mahadik & Ors v. Subash Krishna Kanitkar & Ors: (2005) 4 SCC 99 held that the Municipal Council, which is a statutory authority has no power to regularize the unauthorized construction and realize development charges in respect thereof. In the present case also MUDA has no power to regularize the unauthorized construction. Paras 44 to 48 of the SCC in Mahendra Baburao Mahadik's case (Supra) read as follows:-
"44. In Friends Colony Development Committee v. State of Orissa:[(2004) 8 SCC 733], this Court opined: (SCC p. 744, para 25) "25. Though the municipal laws permit deviations from sanctioned constructions being regularized by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that 116 the builders enter into underhand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilized for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions."
45. In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu:
[(1999) 6 SCC 464], this Court observed: (SCC p. 529, para
73) "73. The High Court has directed dismantling of the whole object and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised.
This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots". A discretionary power must be exercised having regard to the larger public interest.
46. In Consumer Action Group and Another v. State of T.N. [(2000) 7 SCC 425], this Court held : (SCC p. 443, para
30) "While exercising such a power the authority has to keep in mind the purpose and the policy of the Act and while granting relief has to equate the resultant effect of such a grant on both, viz. the public and the individual. So long as it does not materially affect the public cause, the grant would be to eliminate individual hardship which would be within the permissible limit of the exercise of power. But where it erodes the public safety, public convenience, public health etc. the exercise of power could not be for the furtherance of the purpose of the 117 Act. Minor abrasion here and there to eliminate greater hardship, may in a given case, be justified but in no case affecting the public at large. So every time the Government exercises its power it has to examine and balance this before exercising such a power. Even otherwise, every individual right including fundamental right is within, reasonable limit but if it makes inroads into public rights leading to public inconveniences it has to be curtailed to that extent. So no exemption should be granted affecting the public at large. Various development rules and restrictions under it are made to ward off possible public inconvenience and safety. Thus, whenever any power is to be exercised, the Government must keep in mind, whether such a grant would recoil on the public or not and to what extent. If it does then exemption is to be refused. If the effect is marginal compared to the hardship of an individual that may be considered for granting"
Mr. Naphde, therefore, is not correct in contending that the High Court should have taken a lenient view.
54. The Apex Court in Royal Paradise Hotel (P) Ltd. v. State of Haryana & Ors: (2006) 7 SCC 597 held that violation cannot be compounded. Paras 7 & 8 of the SCC in Royal Paradise Hotel (P) Ltd. case (Supra) read as follows:-
"7. It is clear from the statement of the synopsis and list of dates furnished by the appellant itself, that on 4.2.1998, Mr. Chawla, who put up the construction before it was sold to the appellant received a notice under Section 12 of the Act informing him of contravention of Section 3 or Section 6 and of violation of Section 7(1) and Section 10 of the Act and directing him to stop further construction. When it was found that the appellant was defying the direction to stop, an order was passed on 26.2.1998 under sub-Section (2) of Section 12 of the Act directing him to remove the unauthorized construction and to bring the site in conformity with the relevant provisions of the Act on finding that there was clear violation of Section 7 and Section 10 of the Act. On 16.3.1999, another notice was issued to Mr. Chawla mentioning therein that there is a contravention of Section 7(1) or Section 10 of the Act and directing removal of the unauthorized construction. The copies of the original notices are produced by the respondents along with the counter affidavit filed on behalf of the respondents 1 to
3. Though the copies of such notices have been produced by the appellant also, we find that there are some omissions in the copies produced on behalf of the appellant. Whatever it be, the fact remains that the construction was made in the teeth of the notices and the directions to stop the unauthorized 118 construction. Thus, the predecessor of the appellant put up the offending construction in a controlled area in defiance of the provisions of law preventing such a construction and in spite of notices and orders to stop the construction activity. The constructions put up are thus illegal and unauthorized and put up in defiance of law. The appellant is only an assignee from the person who put up such a construction and his present attempt is to defeat the statute and the statutory scheme of protecting the sides of highways in the interest of general public and moving traffic on such highways. Therefore, this is a fit case for refusal of interference by this Court against the decision declining the regularization sought for by the appellant. Such violations cannot be compounded and the prayer of the appellant was rightly rejected by the authorities and the High Court was correct in dismissing the Writ Petition filed by the appellant. It is time that the message goes aboard that those who defy the law would not be permitted to reap the benefit of their defiance of law and it is the duty of the High Courts to ensure that such defiers of law are not rewarded. The High Court was therefore fully justified in refusing to interfere in the matter. The High Court was rightly conscious of its duty to ensure that violators of law do not get away with it.
8. We also find no merit in the argument that regularization of the acts of violation of the provisions of the Act ought to have been permitted. No authority administering municipal laws and other laws like the Act involved here, can encourage such violations. Even otherwise, compounding is not to be done when the violations are deliberate, designed, reckless or motivated. Marginal or insignificant accidental violations unconsciously made after trying to comply with all the requirements of the law can alone qualify for regularization which is not the rule, but a rare exception. The authorities and the High Court were hence right in refusing the request of the appellant."
55. The Apex Court in Esha Ekta Apartments Cooperative Housing Society Limited & Ors: (2013) 5 SCC 357 had rejected the prayer for regularization of the floors constructed in wanton violation of the sanctioned plan. The prayer of the flat buyers for not punishing them for the illegality committed by the builders/developers had been rejected. Paras 3 & 4 of the SCC in Esha Ekta Apartments Cooperative Housing Society Limited case (Supra) read as follows:-
3. In Royal Paradise Hotel (P) Ltd. v. State of Haryana :
(2006) 7 SCC 597, this Court noted that the construction had been made in the teeth of notices issued for stopping the unauthorized construction and held that no authority administering municipal laws can regularize the constructions made in violation of the Act. Some of the observations made in 119 that judgment are extracted below: (SCC pp. 601-02, paras 7 &
8) "7......Whatever it be, the fact remains that the construction was made in the teeth of the notices and the directions to stop the unauthorized construction.
Thus, the predecessor of the appellant put up the offending construction in a controlled area in defiance of the provisions of law preventing such a construction and in spite of notices and orders to stop the construction activity. The constructions put up are thus illegal and unauthorized and put up in defiance of law. The appellant is only an assignee from the person who put up such a construction and his present attempt is to defeat the statute and the statutory scheme of protecting the sides of highways in the interest of general public and moving traffic on such highways. Therefore, this is a fit case for refusal of interference by this Court against the decision declining the regularization sought for by the appellant. Such violations cannot be compounded and the prayer of the appellant was rightly rejected by the authorities and the High Court was correct in dismissing the Writ Petition filed by the appellant. It is time that the message goes aboard that those who defy the law would not be permitted to reap the benefit of their defiance of law and it is the duty of the High Courts to ensure that such defiers of law are not rewarded. The High Court was therefore fully justified in refusing to interfere in the matter. The High Court was rightly conscious of its duty to ensure that violators of law do not get away with it.
8. We also find no merit in the argument that regularization of the acts of violation of the provisions of the Act ought to have been permitted. No authority administering municipal laws and other laws like the Act involved here, can encourage such violations. Even otherwise, compounding is not to be done when the violations are deliberate, designed, reckless or motivated. Marginal or insignificant accidental violations unconsciously made after trying to comply with all the requirements of the law can alone qualify for regularization which is not the rule, but a rare exception. The authorities and the High Court were hence right in refusing the request of the appellant."
4. The aforesaid observations found their echo in Shanti Sports Club v. Union of India : (2009) 15 SCC 705: (2009) 5 SCC (Civ) 707 in the following words: (SCC pp. 743-44, paras 74 & 75) "74. In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls, etc. in blatant 120 violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorised constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan, etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan, etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage, etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air- conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the Government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorised constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasised that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent substantial amount on construction of the buildings, etc....
75. Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans, etc., have received encouragement and support from the State apparatus. As and when the Courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorised constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularisation of illegal and unauthorised constructions in the name of compassion and hardship. Such actions have done 121 irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorised constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions."
56. For the foregoing reasons and discussions, this Court is of the considered view that there is no alternative except to order demolition of the additional floors of the buildings above G+3 illegally constructed by the respondents No.5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 22, 23, 25, 27 & 28. Accordingly, all the additional illegal constructions beyond G+3 shall be demolished by the respondent No. 3. The particulars of the illegally constructed floors of buildings of the private respondents No. 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 22, 23, 25, 27 & 28 to be demolished are already mentioned in the aforesaid paras i.e. in para 18 for respondent No.5, para 19 for respondent No.6, para 20 for respondent No.7, para 21 for respondent No.8, para 22 for respondent No.9, para 24 for respondent No.10, para 25 for respondent No.11, para 27 for respondent No.12, para 28 for respondent No.13, para 30 for respondent No.14, para 32 for respondent No.15, para 34 for respondent No.16, para 38 for respondent No.18, para 39 for respondent No.19, para 40 for respondent No.20, para 42 for respondent No.22, para 43 for respondent No.23, para 45 for respondent No.25, para 48 for respondent No.27 and para 49 for respondent No.28.
57. The MUDA during the course of demolition drive shall seek the assistance of the Deputy Commissioner (Revenue), East Khasi Hills District, Shillong and Superintendent of Police, East Khasi Hills District, Shillong and also, if the need be, para military forces, so as to carry out the direction of demolition of additional floors of the buildings above G+3 illegally constructed by the private respondents No.5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 122 20, 22, 23, 25, 27 & 28 effectively and within a time frame of 15 days from today. The entire expenses incurred in demolishing the illegally constructed floors shall be borne by the private respondents No.5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 22, 23, 25, 27 & 28 in proportion to the expenses incurred in demolishing their respective illegal constructions as noted hereinabove.
58. Seals of the buildings of the private respondents are to be broken only for the purpose of demolishing the illegally constructed floors above G+3. Both the Deputy Commissioner (Revenue), East Khasi Hills District, Shillong and Superintendent of Police, East Khasi Hills District, Shillong shall ensure maintenance of security as well as law and order during the demolition drive of illegally constructed floors above G+3 of the buildings in question. The MUDA shall not issue Completion Certificates under Byelaw 9 and Occupancy Certificates under Byelaw 10, till the floors illegally constructed by the private respondents i.e. respondents No.5-28 are completely demolished. Moreover, interim order(s) passed earlier shall stand merged with this final judgment and order.
59. Considering the rampant irregularities in granting the permissions for construction of buildings by the officials of the MUDA, it would not be in the public interest to let the erring officials go scot-free. The records for granting permissions to the respondents No. 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 & 28 have already been sealed by the Superintendent of Police, CBI, Shillong as ordered by this Court. The CBI shall thus register PE against the officers of MUDA who have granted permissions for constructions to the aforesaid respondents and by their acts of commission and omission benefitted the said respondents and also others whose buildings could not be brought to the notice of the Court during the consideration of this case. The CBI shall also proceed against such 123 builders and other persons who have been or were likely to be benefitted by such acts of commission and omission on the part of the officers of MUDA during the course of enquiry/investigation of the PE. The CBI is also directed to find out from the records of MUDA, as to, apart from the instant cases, in how many more such cases of illegal constructions presently existing in the city of Shillong, the building owners/builders have been benefitted by the acts of commission and omission on the part of officers of MUDA. The report shall be submitted to the Court on 15.10.2015 to find out as to whether the said erring officers of MUDA and building owners/builders are required to be prosecuted in the interest of justice. However, on the point of criminal liability of officers and others, the Office of this Court shall register a criminal petition which shall be listed on 15.10.2015 before appropriate Court for consideration and appropriate orders.
60. The Registry is directed to send a copy of this judgment and order to the Secretary MUDA respondent No.3, the Deputy Commissioner, East Khasi Hills District, Shillong, the Superintendent of Police, East Khasi Hills District, Shillong, and also to the Union Home Secretary and the Director General of all the para-military forces stationed in Shillong for immediate compliance.
61. Writ petition is allowed.
62. Parties are to bear their own costs.
JUDGE CHIEF JUSTICE Lam