Gauhati High Court
Ritesh Kumar Tibrewala vs The State Of Assam And 6 Ors on 31 August, 2016
Author: A. K. Goswami
Bench: A. K. Goswami
1
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Writ Petition (C) No. 4022/2015
Sri Ritesh Kumar Tibrewala,
Son of Sri Jugal Kishore Tibrewala,
Resident of Ganesh Building Compound,
Polo Field Road, Tezpur,
District-Sonitpur, Assam.
- Petitioner
-Versus-
1. The State of Assam,
represented by the Deputy Secretary to the
Government of Assam,
Urban Development Department, Dispur,
Guwahati-781006.
2. The Chairman,
Tezpur Municipal Board,
Tezpur-784001,
District-Sonitpur, Assam.
3. The Deputy Director,
Office of the Town and Country Planning,
Tezpur-784001,
District-Sonitpur, Assam.
4. The Deputy Commissioner,
District-Sonitpur,
Tezpur-784001, Assam.
5. The Superintendent of Police,
Sonitpur, Assam.
6. The Officer-in-Charge,
Tezpur Sadar Police Station,
Tezpur, Sonitpur.
7. Sri Pradip Tibrewala,
Son of Late Biswanath Tibrewala,
Resident of Main Road, Tezpur-784001,
District-Sonitpur, Assam.
- Respondents
BEFORE HON'BLE MR. JUSTICE A. K. GOSWAMI For the petitioner : Mr. M. K. Choudhury, Sr. Advocate Mr. A. Pervez, Advocate.
For respondent Nos.1 & 3 to 6 : Mr. B. J. Ghosh,
Government Advocate, Assam.
For respondent No. 2 : Mr. J. Handique, Advocate.
For respondent No.7 : Mr. K. N. Choudhury, Sr. Advocate,
Mr. A. Tiwari, Advocate.
Dates of hearing : 21.7.2016, 28.7.2016 & 2.8.2016.
Date of Judgement & Order : 31.08.2016
WP(C) 4022/2015
2
JUDGMENT & ORDER
Heard Mr. M.K. Choudhury, learned senior counsel for the petitioner. Also heard Mr. B.J. Ghosh, learned State counsel appearing for the respondent Nos. 1, 3 to 6, Mr. J. Handique, learned counsel appearing for the respondent No. 2 and Mr. K.N. Choudhury, learned senior counsel appearing for the respondent No. 7.
2. The case of the petitioner as projected in the writ petition, inter alia, is that the petitioner is an owner of a plot of land measuring 17½ lechas (2520 sq. ft.), by virtue of execution of a registered gift deed by his father in the year 1986, and the respondent No. 7 owns a plot of land measuring 1 katha 13 lechas (441.210 sq. metre) and is a neighbour in the east-west direction of the land of the petitioner. He received a copy of a caveat dated 2.5.2015 filed under Section 148-A CPC lodged by respondent No. 7. After the caveat was lodged, the respondent No. 7 started development works in the land owned by the respondent No. 7 and smelling a rat, he made enquiries with the respondent No. 7 specifically with regard to the building permission granted. However, the respondent No. 7 declined to show the site plan and the No Objection Certificate (NOC). As the petitioner found that the respondent No. 7 was not following the Municipal norms in the southern and western boundaries, he had written a letter dated 04.06.2015 to the respondent No. 2 with a request to enquire into the matter and to stop construction of the building. Based on that letter, the respondent No. 2 made an enquiry and in the enquiry it was found that there was deviation from the sanctioned plan in the side set back and rear set back as the set back maintained by the petitioner was 1.35 metre and 2.60 metre instead of 1.5 metre and 3 metre, respectively. A notice was issued by the respondent No. 2 on 16.6.2015 to remove the irregularities within 7 days but without removing the same, the respondent No. 7 continued with the construction work and the respondent No. 2 remained as a silent spectator and only as an eye-wash, again issued a letter dated 23.6.2015 directing the respondent No. 7 to comply with the letter dated 16.6.2015. In the meantime, the petitioner could obtain the NOC issued for construction of the building which was dated 15.2.2014 and issued under "Clause 1 of Section 53A (1) of the Assam Municipal Act, 1956, as amended in 2011" and, to his bewilderment, found that the NOC was issued on the same day of submitting application, ostensibly to by-pass and defeat the provisions of proposed Assam Notified Urban Areas (Other Than Guwahati) Building Rules, 2014 (for short, 'the 2014 Rules'). In the writ petition, details of changes which would have been required had the NOC been granted under the 2014 Rules are also delineated. It is pleaded that the NOC was issued in gross violation of the Office Memorandum dated 21.11.2013 issued by the Deputy Secretary to the Government of Assam, Urban Areas Development Department on the subject of building permission. The WP(C) 4022/2015 3 illegalities committed by the respondent No. 2 while issuing the NOC are highlighted in paragraph 11. It is also pleaded that there being no provision for parking of vehicles, same will result in major parking problem in the locality. Besides, no NOC was obtained by the respondent No. 7 from State Fire Services which is a condition precedent for enabling a person to obtain NOC under Municipal laws. No environmental clearance is also obtained by the respondent No. 7 and, therefore, for the illegalities committed by the respondent No. 7, the building constructed by the respondent No. 7 based on an NOC issued in violation of law, is liable to be demolished. But the respondents had turned a blind eye to the illegal construction and thus have abdicated the statutory powers. It is also stated that a proceeding, under Section 107 Cr.P.C., had also not yielded the desired result.
3. The respondent No. 2 filed an affidavit stating that by the time the writ petitioner filed his complaint on 4.6.2015, the respondent No. 7 had already completed the construction of the basement and had started construction of the first floor based on the NOC dated 15.2.2014. The respondent No. 2 acknowledged that on measurement of the land inside the boundary wall of the respondent No. 7 on southern and eastern side, minimal deviation was found and, accordingly, the letter dated 16.6.2015 was issued to correct the deviation. It is averred that southern side of the land of the respondent No. 7 is covered by land of Vineet Kumar Tibrewala, Bhagawati Devi Tibrewala and the petitioner. Vineet Kumar Tibrewala and Bhagawati Devi Tibrewala had submitted NOC to the Board in respect of the construction. In the southern side of the land of respondent No. 7, petitioner's land comprises of only 5% of the total length and if the measurement is taken from the edge of the boundary wall, which is 10' thick, there would be no deviation. In view of the order of this Court dated 07.12.2015, the land was again measured in presence of both the parties and when measured from the outside edge of the boundary wall of the respondent No. 7, deviation was found to be much lesser than given in the notice dated 16.6.2015. While taking measurement, a godown illegally constructed by the petitioner on the boundary wall of the respondent No. 7 was noticed. The Rules of 2014 was not brought into force and the NOC having been granted lawfully, could not be cancelled. It is averred that the Office Memorandum dated 21.11.2013 had not been implemented as the extant Act and Rules have not been amended. The allegation of granting of NOC on the date of application is denied and in view of minimal deviation, it is averred that the building cannot be demolished.
4. At this stage, it will be relevant to notice the order dated 7.12.2015 of this Court. Taking note of the fact that the petitioner and respondent No. 7 are litigating over family property and also of the possibility of negotiated settlement of the dispute, favourable response having emanated both from the petitioner and the respondent No. 7, this Court attempted to resolve the dispute through mediation. A trained Mediator, however, submitted a report dated 9.2.2016 WP(C) 4022/2015 4 remarking that mediation had failed. While passing the order dated 07.12.2015, the Court had also taken note of the affidavit of the respondent No. 2 wherein the stand was taken by the Board that there was only minimal deviation in the construction.
5. The respondent No. 5 in his affidavit had stated that Section 107 Cr.P.C. proceeding was stayed by the learned Sessions Judge, Sonitpur vide his order dated 5.8.2015.
6. The petitioner filed a reply affidavit to the affidavit of respondent No. 2 stating that he, his father and other family members have common boundary with respondent No. 7 on western and southern sides and being a member of the joint Hindu Undivided Family (HUF), he has a right to protect the interest of HUF property. It is averred that he came to know about the construction of the respondent No. 7 only after receiving the caveat dated 2.5.2015. While denying the averments that the respondent No. 7 had started construction after obtaining permission on 15.2.2014, it is stated that respondent No. 7 had started the construction of the first floor after 4.6.2015. It is pleaded that on the southern side of the land of respondent No. 7, family members of the petitioner are having 20% common boundary with respondent No. 7, whereas in the eastern side they have 100% common boundary. The averment that there would be no deviation if the measurement is taken from the edge of the boundary wall is denied. So also the assertion that after passing of the interim order dated 07.12.2015, land was measured in presence of both the parties. It is also stated that the thickness of the wall is only 5". The godown that is referred to in the affidavit of respondent No.2 is stated to be in existence for more than 80 years.
7. The respondent No. 7, in his affidavit, asserted that the land records do not reflect petitioner's name as the southern neighbour of respondent No. 7 as the land records show the names of only Vineet Kr. Tibrewala, Bhagawati Devi Tibrewala and M/s Ganesh Rice and Oils Mills. M/s Ganesh Rice and Oil Mills has only 5% common boundary on the southern side of the land of respondent No. 7 and, therefore, the writ petition filed by the petitioner is not maintainable. It is pleaded in the affidavit that the application seeking permission for construction was submitted by the respondent No. 7 on 18.6.2013 and only on 15.2.2014, permission was granted. Construction work was started on 2.5.2015 and by the time the complaint was filed, basement work was completed and works in the first floor was in progress. The allegation of deviation of construction norms in keeping set back was denied and it is stated that if the measurement is taken from the 10" thick boundary wall constructed by the petitioner, there will be no deviation. Vineet Kr. Tibrewala and Bhagawati Devi Tibrewala had issued NOC with regard to the construction. During measurement, officials of the respondent No. 2 found a godown of the petitioner illegally constructed on north-eastern side of the land of the respondent No. 7. It is pleaded that the writ petitioner has resorted to making these false allegations of WP(C) 4022/2015 5 violation in issuance of NOC as well as violation of construction norms only as a weapon to put pressure upon respondent No. 7 in view of the ongoing land dispute between the petitioner and the respondent No. 7 in Rajasthan.
8. In respect of Office Memorandum dated 21.11.2013, the respondent No. 7, in the affidavit, stated that Office Memorandum is not enforceable under Article 226 of the Constitution of India and, further, the same was yet to be implemented by the authorities.
9. The petitioner filed an additional affidavit on 4.4.2016 after perusal of records pertaining to grant of permission to respondent No. 7. In the said affidavit, it is alleged that the respondent No. 2 had not followed the Guidelines dated 12.6.2000 issued in exercise of powers conferred under Section 10(2) of the Assam Town and Country Planning Act, 1959, as amended and the Assam Town and Country Planning (Amendment) Act, 1994, read with the Assam Town and Country Planning (Publication of Master Plan and Zoning Regulations)(Amendment) Rules, 1995, hereinafter referred to as 'Zoning Regulation, 2000', as well as Office Memorandum dated 21.11.2013. It is stated that the southern side is 21.94 metre in length out of which 4 metres is shared by M/s Ganesh Rice and Oil Mills of which the petitioner and other family members are owners. As such, the percentage of total length shared by M/s Ganesh Rice and Oil Mills with the respondent No. 7 is 18% in the southern boundary. The set back shown in the permission is not in accordance with Rule 11.5 of the Zoning Regulation, 2000, and besides, the NOC from Fire Services under Rule 11(1) of the Zoning Regulation, 2000, was also not obtained. As the respondent No. 7 is the owner of the land measuring 1 katha 13 lechas only, the building permission for basement (B) + ground (G) + four (4) could not have been granted in terms of Rule 11.4.(E.4) of the Zoning Regulation, 2000, as the minimum land required for the purpose is prescribed to be 3 Katha. While in the writ petition statement was made that there was no provision for parking of vehicles, making a shift in stand, it is averred that the total parking place available is 207.045 sq. metre which ought to have been 288.368 sq. metre. The report of Hemen Patangia, Assistant Engineer of the Board dated 5.8.2015 is branded as a false report stating that no information was given to the petitioner regarding measurement of the construction site. It is also stated that the report submitted by Mr. Hemen Patangia was submitted without visit to the construction site. It is averred that in the southern side of the building under construction the petitioner has drainage system, and if the same is blocked due to illegal set back, it may have the potential of causing serious sanitation problem.
10. An affidavit-in-opposition was filed by the respondent No. 7 in response to the additional affidavit filed by the petitioner. In the affidavit it is asserted that the Guidelines dated 12.6.2000 (Zoning Regulation, 2000) and the Office Memorandum dated 21.11.2013 are yet to be implemented. M/s Ganesh Rice and Oil Mills, it is reiterated, has only 5% common boundary on WP(C) 4022/2015 6 the southern side with that of the petitioner and none of the owners of M/s Ganesh Rice and Oil Mills has any objection relating to the construction. It is also stated that the measurement was done in presence of the parties.
11. Mr. M. K. Choudhury, learned Senior counsel for the petitioner, has submitted that the provisional NOC was issued illegally and in violation of the Zoning Regulation, 2000 on the very day of filing of the application by the respondent No. 7. That apart, the provisional NOC dated 15.02.2014 was issued in gross disregard to the Office Memorandum dated 21.11.2013 and, therefore, the provisional NOC granted has no legal basis. During the course of hearing, he has produced a Notification dated 30.08.2006 published in the Assam Gazette Extraordinary on 20.12.2007, in connection with publication of revised Draft Master Plan and Zoning Regulation of Tezpur, and a notification dated 24.08.2010, on the subject of publication of notice regarding Revised Final Master Plan for Tezpur, published on 31.12.2010 in the Assam Gazette Extraordinary. He has pointed out Section 9, 10 and 13 of the Town and Country Planning Act, 1959 (for short, '1959 Act'), to contend that after preparation and publication of Master Plan for development of any area, without the permission of Municipal Board or Development Authority, neither any structure can be set up nor any existing structure can be changed. It is submitted by him that Zoning Regulation, 2000, and Notification dated 24.08.2010 prescribe similar parameters in respect of minimum area of land required for high-rise building, parking space, floor area ratio, setback, etc. and it is discernible that side and rear setbacks in the provisional NOC are not conforming to the Zoning Regulation, 2000, and the Notification dated 24.08.2010. He has submitted that side and rear setback should have been 3.3 metres, but in the provisional NOC, right setback is shown as 1.50 metres and the left setback is shown as 2.60 metres. For the type of building for which provisional NOC was granted, minimum requirement of land is 3 kathas, but the respondent No. 7 has only 1 katha 13 lechas of land. It is submitted by him that no measurement was done in presence of the writ petitioner pursuant to the order of this Court dated 15.07.2015 though stand had been taken by the respondent No. 2 that some measurement was taken in presence of the parties. Learned Senior counsel submits that the fact that provisional NOC was granted on the very date of filing application itself demonstrates that the provisional NOC was granted on extraneous consideration in order to grant undue benefit by fixing setbacks etc., less than the prescribed norms. Such provisional NOC was also granted without there being any NOC from the State Fire Services. Accordingly, learned Senior counsel submits that the provisional NOC dated 15.02.2014 granted in favour of the respondent No. 7 is liable to be quashed and the respondents are liable to be directed to demolish the building constructed on the basis of such NOC. He has relied on a judgement of the Apex Court in the WP(C) 4022/2015 7 case of K . R am adas Shenoy Vs. The Chief Officer, Tow n M unicipal Council, Udipi and Others , reported in (1974) 2 SCC 506 .
12. Mr. K. N. Choudhury, learned Senior counsel for the respondent No. 7 has submitted that from time to time documents were submitted by the respondent No. 7 to the respondent No. 2 for the purpose of evaluation of the same for grant of NOC and, therefore, it is not correct, as contended, that on the very date of application, permission came to be granted. After the documents were found to be in order, formal application may have been submitted on 15.02.2014. As by that time evaluation of the documents had already taken place, not much importance should be attached to the grant of provisional NOC on the date of formal application. He contends that building of the respondent No. 7 is not an apartment building and therefore, plea taken by the petitioner that minimum requirement of land is 3 katha is absolutely misconceived. He has contended that setbacks had been correctly reflected in the provisional NOC and a clear stand is taken by the respondent No. 2 that only minimal deviation was found on measurement and such deviation can always be compounded. Mr. K. N. Choudhury submits that the Office Memorandum dated 21.11.2013 was not acted upon by any of the urban local bodies and, furthermore, the Assam Municipal Act, 1956, for short, 1956 Act, had also not been amended and, therefore, the contention of the learned Senior counsel for the petitioner regarding violation of Office Memorandum dated 21.11.2013 is not tenable. It is also submitted by him that the writ petitioner is raising the dispute only to put pressure on the respondent No. 7 as a litigation regarding land is pending between the petitioner and respondent No. 7. Mr. Choudhury contends that petitioner's name is not reflected in the land records in the southern boundary of respondent No. 7 and, therefore, the petitioner has no locus-standi to maintain this application. At any rate, the family of the petitioner shares boundary in the southern side of the respondent No. 7 to the extent of only 5% in length and the persons who have 95% common boundary with the respondent No. 7 had given No Objection for construction of the building and, therefore, not much credence ought to be placed on the assertions of the petitioner. Mr. K. N. Choudhury argued that in response to a letter dated 15.02.2014, available on record, requiring the respondent No. 7 to submit documents as indicated therein, the respondent No. 7 had submitted all the documents except the NOC from the State Fire Services Department. Placing reliance on the Assam Fire Service Rules, 1989 and with special emphasis on Rule 18(2), Mr. K. N. Choudhury submitted that the No Objection Certificate in Form-G is to be issued by the Director of Fire Services on being satisfied about the provisions of fire prevention and safety measures only after building is constructed and only thereafter No Objection Certificate is issued for occupation and utilization of the building subject to conditions as may be mentioned. Therefore, insistence of NOC before building is completed is not justified. He, accordingly, WP(C) 4022/2015 8 submitted that fire prevention measures are to taken only after the building is completed. However, he has submitted that underground tank and terrace tank should be constructed during the time of construction. Accordingly, he submits that the writ petition ought to be dismissed.
13. Mr. J. Handique, learned counsel appearing for respondent No. 2, has abided by the stand taken in the affidavit filed by the respondent No. 2. He has reiterated that there was only minimal deviation in the construction of the building.
14. I have considered the submissions of the learned counsel for the parties and have perused the materials on record.
15. The Municipal authorities owe a duty and obligation to ensure that there is no unauthorised construction. The petitioner's family is in the neighbourhood where the respondent No. 7 is making the construction and any unauthorised and illegal construction would invade their rights.
16. The Apex Court, in K. Ramadas Shenoy (supra), had held that a resident in the area where municipality had illegally sanctioned a plan has a right to compel the municipality to perform its duty imposed by the statute. In view of the above, the argument of Mr. K. N. Choudhury that the petitioner has no locus standi to maintain the writ application is found to be without any merit as even the affidavit of respondent No. 2 acknowledges that there is deviation, though minimal.
17. Perusal of the records produced by Mr. Handique goes to show that a note was put up to the Chairman on 15.2.2014 (perhaps by one Hemen Patangia, Assistant Engineer) indicating that permission may be granted to issue NOC in favour of the applicant (respondent No.7) for construction of the building with the details as indicated in the note. It is stated in the said note that the existing building bye-law of Tezpur Development Authority had been taken into consideration for granting permission as per Government instruction. On that very day, provisional No Objection Certificate was issued with reference to application dated 15.2.2014 in the name of "Sri Pradip Tribewala" instead of "Pradip Tibrewala". The requisite fee was submitted on 15.2.2014 against receipt No. 1709. Date of application was not signed by the applicant and the number "15"of the date 15.02.2014 appears to be over-written by the office staff of respondent No. 2 in two places on the application filed by the respondent No. 7, which is at page 6 of the record. In the writ petition, it is to be noted, imminent coming into force of the 2014 Rules with more stringent provisions, was attributed to be the prime reason for granting of NOC on the date of application itself.
WP(C) 4022/2015 9
18. There is no material on record to indicate that the respondent No. 7 was submitting documents from time to time. It is, however, seen that the certificate of the Registered Architect is dated 9.9.2013. In the building plan submitted, which is found in the record, there is no date. Grant of NOC on the date of submission of application, if in accordance with law, certainly, cannot be questioned only on the ground that it is issued on the date of the application. On the date of issuance of Provisional NOC, the petitioner was directed to produce four documents, viz, (1) NOC from the State Fire Service, (2) Structural Drawing, (3) Area statement and (4) Structural Engineer on Record (SER), within 10 days from the receipt of the provisional permission and failure to produce, it was indicated, would lead to cancellation of the provisional permission. Provisional permission apparently means provisional NOC. There is nothing on record to indicate that the same had been produced before the Board though Mr. Choudhury had produced a photocopy of the letter dated 15.2.2014, which is placed on record, without the word "to verification" with the following endorsement: "received the following, (1) area statement, (2) SDBR, (3) Strn drawing of pile" with the signature of the very same person who had put up the note dated 15.2.2014 to the Chairman. It is not known whether any other records are maintained by the Board or by the Assistant Engineer.
19. In the additional affidavit filed, the petitioner had referred to the Guideline dated 12.06.2000 (Zoning Regulation, 2000) and it is alleged that the respondent Board had not followed the Guidelines relating to norms of building permission as contained therein. The Notification dated 12.06.2000 was in the form of notice regarding publication of final Uniform Zoning Regulations. There was no reference to any other Regulation prescribing norms for grant of building permission etc. in the pleadings. However, as noticed earlier, Mr. M. K. Choudhury had also produced and relied upon, amongst others, the Notification dated 24.08.2010. The respondent No. 7 in its additional affidavit filed on 17.05.2016 had stated that the Guidelines dated 12.06.2000 (Zoning Regulation, 2000) was yet to be implemented. In the affidavit filed by respondent No. 2, there was no elucidation in respect of the basis on which provisional NOC was granted, though, in the note put up to the Chairman on 15.02.2014, reference to existing building bye-law of Tezpur Development Authority was made.
20. Materials on record including the records produced by the Board do not indicate that any notice was issued to the petitioner to be present at the time when the measurement was taken by the Board though the respondent No.7 and the Board have stated that the writ petitioner was also present when measurement was done on the basis of the order of this Court. It was incumbent for the Board to have given proper notice in writing to the parties before any measurement of the land is undertaken and in absence of any such notice or any document WP(C) 4022/2015 10 evidencing presence of the writ petitioner, the plea taken by the petitioner that the measurement, if any, had taken place in his absence, cannot be thrown over-board.
21. At this stage, it will be most appropriate to take note of the Office Memorandum dated 21.11.2013, which is annexed as Annexure 8 of the writ application.
The Office Memorandum reads as follows:
"No.UDD(M)145/2012/9: In pursuance of amendment of Assam Municipal Act, 1956 in 2011-12, the Government in Urban Development Department issued letter vide No.UDD(M)/145/2012/4 dated 31st October, 2012 to all Chairman of all Municipal Boards/Town Committees in Assam other than areas under 6th Schedule of the Constitution to follow certain procedure as an interim measure for Building permission for erection/material alteration/re-erection of a Building within the notified areas of Municipal Boards/Town Committees till the uniform building Rules under the process of being framed come into force. However, several complaints regarding non- compliance of the said procedure in issuing NOC without following the Master Plan Provision and Zoning Regulations have been received from the Deputy Director, Town & Country Planning. Therefore, the Chairman of Municipal Boards/Town Committee other than 6th Schedule areas are directed to strictly follow the following procedure till the uniform Building Rules under the process of being framed come into force.
During the interim period till the Rules, mentioned above, come into force, Chairmen are to follow the following procedures as an interim measure for according permission for erection/material altercation/re-erection of a Building within the areas notified.
(i) Receive application for building construction/transfer of land in the Office of Municipal Boards/Town Committees for the purpose. The application must be supported by documents relating to the title over the land, building plan, site plan, service plan and area statement and structural safety certificate issued by the Competent Authority.
(ii) Application fee may charged at the rate charged hitherto by the Development Authorities for such matters.
(iii) The application, after receipt in the Office, should be processed by a qualified technical staff (minimum a Diploma holder in Civil Engineering). After such scrutiny, regarding minimum requirements of the documents and whether those are in order or not, the file containing application shall be sent to the Deputy Director/Assistant Director of the Town & Country Planning Directorate, Assam, WP(C) 4022/2015 11 posted in the District Head Quarter, nearer to the ULB concerned within 3 working days from the date of receipt of such application.
(iv) The Deputy Director/Assistant Director shall examine the aspects relating to regulations in accordance with the provisions of the Assam Town & Country Planning Act, 1959 and Zoning Regulation. He may also give opinion on any other technical aspect of the application and the documents attached to it. The said Authority may further suggest for obtaining views from the Head of the Division/Sub-Division of the PWD Buildings, located in the area, if felt necessary. The time to be taken by the Deputy Director/Assistant Director of the Directorate of Town & Country Planning, mentioned in Sub Paragraph (iii) above, should not exceed 4 working days for this purpose.
(v) The Chairman of the Municipal Board/Town Committee, on receiving back the file from the Deputy Director/Assistant Director of the Directorate of Town & Country Planning, Assam, will place the matter before the Board at a meeting for according permission or may act as provided under Sub-Section (1) of Section 37 of the Assam Municipal Act, 1956, as Chairman may deem proper. However, time to be taken for this purpose should not exceed 5 working days.
(vi) In case, the Deputy Director/Assistant Director of the Directorate of Town & Country Planning, as described in the preceding sub paragraphs, suggest that the views may be obtained from the PWD Building, in respect of any application the Chairman would act accordingly and send the file to the Head of the Sub-
Division/Division of PWD Building concerned, located nearer to the ULB. In such cases permission shall be granted on getting views from the said Authority."
22. The aforesaid Office Memorandum was preceded by a letter 31.12.2012 pursuant to amendment of the 1956 Act, prescribing procedure as an interim measure for grant of building permission till uniform Building Rules are brought into force. The Memorandum dated 21.11.2013 came to be issued as complaints were received regarding non-compliance of procedure in issuing NOC by the Municipal Boards/Town Committees, requiring the Municipal Boards/Town Committees to follow the procedure strictly. Under the Office Memorandum dated 21.11.2013, the application for building construction, after processing by the Municipal Boards/Town Committees and subjecting it to scrutiny regarding minimum requirements etc., the file containing the application is required to be sent to the Deputy Director/Assistant Director of the Town and Country Planning Directorate posted in district headquarters, nearer to the urban local body, within three working days from the date of receipt of the application and the Deputy Director/Assistant Director is required to examine the aspects relating to regulations in accordance with the provisions of the 1959 Act, and the Zoning Regulation within a period of WP(C) 4022/2015 12 four working days and to return the file thereafter to the Municipal Boards/Town Committees. Within the next five days, decision regarding grant of permission is to be taken by Municipal Boards/Town Committees.
23. This Court will not embark upon a journey to find out as to whether the Zoning Regulation, 2000 and Notification dated 24.08.2010 prescribe similar parameters and norms relating to building permission, as contended by Mr. M.K. Choudhury. If Zoning Regulation, 2000 holds the field, reference to Notification dated 24.08.2010 will not be necessary. Respondent No.7 contends that Zoning Regulation, 2000 was not even implemented. The Board has also not unequivocally stated based on what Notification/Bye-laws, the provisional NOC was issued. On the state of pleadings, I am of the considered opinion that it will be hazardous for a writ court to make any comments with regard to alleged irregularities committed while issuing the provisional NOC. The Board had not challenged the Office Memorandum dated 21.11.2013 and, therefore, it is expected to follow the Office Memorandum and the question of non-implementation of the same will not arise. Having regard to the scope of adjudication in this writ petition, this Court does not consider it appropriate to go into the question raised by Mr. K. N. Choudhury that the Office Memorandum dated 21.11.2013 is not binding on the urban local bodies. In the singular facts of this case, this Court is of the considered opinion that it will be appropriate for this Court to dispose of the writ petition with the following directions:
(i) The respondent No. 2 will forward the application of the respondent No. 7 for building permission along with all enclosures together with copy of the provisional NOC dated 15.02.2014 issued to the respondent No. 7 to the Deputy Director/Assistant Director of Town and Country Planning Department at Tezpur within a period of five days from the date of receipt of a certified copy of this order.
(ii) The Deputy Director/Assistant Director of Town and Country Planning Department at Tezpur will examine the documents and send back the same within a period of four days from the date of receipt of the documents from the respondent No. 2 along with his comments as to whether the provisional NOC dated 15.02.2014 is conforming to the requirements under Guideline/Notification in force as on 15.02.2014. He shall specifically name the Guideline/Notification which was in force and which he had taken into account.
(iii) The respondent No. 2 will forthwith inform the petitioner and the respondent No. 7 the decision of the Deputy Director/Assistant Director of Town and Country Planning Department at Tezpur.
(iv) If the provisional NOC is held to be correctly issued by the Deputy Director/Assistant Director of Town and Country Planning Department at Tezpur, the respondent No. 2 will cause a notice to be served upon the petitioner and the respondent WP(C) 4022/2015 13 No. 7 within a period of five days from the date of receipt of the documents from the Deputy Director/Assistant Director of Town and Country Planning Department at Tezpur for the purpose of measurement of the land and building to find out as to whether there is any deviation in construction of the building.
(v) If any deviation is found on measurement, appropriate action will be taken by the Board, which may also include compounding and regularization of the deviation in accordance with law.
(vi) The respondent No. 7 shall not resume construction of the building till the directions above are complied with. Needless to say, further construction of the building by the respondent No. 7 will be depended upon the outcome of the directions given above. As basement and first floor of the building were already completed by the respondent No. 7, the authorities will scrupulously observe the time-frame fixed by the Court while complying with the above directions.
24. The writ petition is disposed of with the aforesaid directions and observations. No cost.
JUDGE M. Sharma/ RK WP(C) 4022/2015