Page No.# 1/ vs The Guwahati Metropolitan Development ...
2025 Latest Caselaw 3101 Gua

Gauhati High Court

Page No.# 1/ vs The Guwahati Metropolitan Development ... on 13 February, 2025

Author: Manish Choudhury

Bench: Manish Choudhury

                                                               Page No.# 1/10

GAHC010016622025




                                                       2025:GAU-AS:1474

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/526/2025

         RUKSHANA PARVEEN
         D/O JAKIR HUSSAIN,
         W/O MD. SHAHNEWAZ ALAM, RESIDENT OF JAME MASJID ROAD,
         NOTBOMA, PO HATIGAON, KAMRUP METRO, ASSAM, 781038

         VERSUS

         THE GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY
         REPRESENTED BY CHIEF EXECUTIVE OFFICER, BHANGAGARH,
         GUAWAHATI, KAMRUP METRO, ASSAM, 781005

         2:THE CHIEF EXECUTIVE OFFICER
         THE GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY
          BHANAGAGARH
          GUWAHATI
          KAMRUP METRO
         ASSAM 781005

         3:THE GUWAHATI MUNICIPAL CORPORATION
          REPRESENTED BY THE COMMISSIONER
          GUWAHATI MUNICIPALCORPORATION
          GUWAHATI
          781005

         4:THE OFFICER IN CHARGE
          HATIGAON
          POLICE STATION
          GUWAHATI
          KAMRUP METRO
         ASSAM
          781038

         5:SRI MADHAB DEKA
          EMPANELLED REGSITERED TECHNICAL PERSONNEL UNDER MUKHYA
                                                                                 Page No.# 2/10

            MANTRI SOHOJ GRIHA NIRMAN ACHONI
            HOUSE NO. 30
            BYE LANE NO. 2
            BILPAR
            CHATRABARI
            PS PALTANBAZAR
            REHABARI
            GUWAHATI
            GUWAHATI
            KAMRUP METRO
            ASSAM 781008

            6:MD BAHARUL ISLAM
             NOTBOMA
             JAME MASJID PATH
             PO AND PS HATIGAON
             GUWAHATI
             KAMRUP METRO
            ASSAM
             78103

Advocate for the Petitioner   : MR K PUJARI, MS. K A PUJARI

Advocate for the Respondent : SC, G M D A, MR. J HANDIQUE, GA, ASSAM, (R-4),SC, GMC


                                    BEFORE
                   HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                        JUDGMENT

Date : 13.02.2025

Heard MS. K.A. Pujari, learned counsel for the petitioner and Mr. P. Nayak, learned Standing Counsel, GMDA & GMC for the respondent nos. 1, 2 & 3.

2. The instant writ petition under Article 226 of the Constitution of India has been preferred initially, to assail a Show-Cause Notice / Stop Construction Notice dated 03.12.2024 issued under Section 87 and Section 88 of the Guwahati Metropolitan Development Authority [GMDA] Act, 1985 in respect of construction of one RCC [G+2] residential building

[completed 2nd floor roof casting], undertaken by the petitioner. The notice was issued on the ground that there were violations of the provisions of the Building Bye-Laws and the Page No.# 3/10

Guwahati Metropolitan Development Authority Act, 1985 ['the GMDA Act', for short]. Subsequently, an Order has been passed on 27.01.2025 by the respondent no. 2 whereby the respondent no. 2 in exercise of the powers conferred under Section 33 the GMDA Act, has

revoked the Planning Permit dated 14.01.2023 issued earlier for addition of the 2 nd floor to the petitioner, with immediate effect.

3. The petitioner has stated that she purchased a plot of land measuring 1.34 Are, covered by Dag no. 474 & Patta no. 328, situate at revenue Village - Notboma, Mouza - Beltola, Revenue Circle - Dispur, Sub-Division - Guwahati, District - Kamrup [Metro] ['the subject-plot', for short] vide a registered Sale Deed bearing registration no. 12483 dated 25.08.2021. The subject-plot stood mutated in favour of the petitioner pursuant to an Order of Mutation dated 16.09.2021 passed by the Circle Officer, Dispur Revenue Circle. It is stated that after obtaining mutation in respect of the subject-plot, the petitioner applied for building permission for construction of a RCC building up-to G+1 [ground and up-to first floor] on the subject-plot under the Mukhya Mantri Sohoj Griha Nirman Achoni and the petitioner was granted a Planning Permit vide Letter no. GMDA/PP/MMSGNA/20220801/04431 dated 01.08.2022 and a No Objection Certificate vide Letter no. GMC/BP/MMSGNA/20220801/04431 dated 01.08.2022. After completion of contraction of the RCC Building up to G+1, the petitioner applied for building permission up to G+2 [ground and up to second floor] and the petitioner stated to have obtained the plan approved on 13.01.2023 by Empanelled Registered Technical Personnel [ERTP]. Thereafter, the petitioner was granted Planning Permit vide no. GMDA/PP/MMSGNA/20230114/05460 dated 14.01.2023 and No Objection Certificate for construction vide Letter no. GMC/BP/MMSGNA/20230114/05460 dated 14.01.2023.

4. It is the case of the petitioner that during the construction of the building an incident occurred on 19.09.2024 within the subject-plot and in connection with the said incident, a complaint came to be lodged by one Baharul Islam before the GMDA authorities. The said complaint was registered vide Ecf no. 565527/20 on 03.12.2024 by the respondent no. 2. The petitioner has further contended that it was after the said incident, the complaint and the registration of the complaint, the impugned Show-Cause Notice / Stop Construction Notice came to be issued by the respondent no. 2 purportedly in exercise of powers under Section Page No.# 4/10

87 and Section 88 of the GMDA Act. The petitioner has stated that in response to the Show- Cause Notice / Stop Construction Notice, the petitioner submitted her Reply before the respondent GMDA Authorities. Thereafter, the impugned Order dated 27.01.2025 has come to be passed by the respondent no. 2 in exercise of power under Section 33 of the GMDA Act whereby the Planning Permit dated 14.01.2023 [supra] issued in favour of the petitioner has been revoked with immediate effect. As per the Show-Cause Notice / Stop Construction Notice dated 03.12.2024, on visits of the officials to the construction site, violations of the approved plan and manipulation of facts were noticed. Thereafter, the Show-Cause Notice / Stop Construction Notice was issued asking the petitioner to show-cause as to why the irregular or unauthorized construction should not be demolished or as to why the premises should not be sealed due to unauthorized construction carried out or completed. In the impugned Order dated 27.01.2025, a finding has been recorded to the effect that the

permission of the 2nd floor over the G+ building was accorded by the concerned ERTP in gross violation of the provisions of Building Bye-Laws in terms of the required plot area and setbacks over a G + 1 building without considering the earlier violations of the G + 1 building. Another finding has been recorded to the effect that the petitioner had raised

unauthorized construction on the terrace of the 2 nd floor, rendering the building vulnerable structurally and the same has given rise to safety concerns. The Show-Cause Notice / Stop Construction Notice and the Order dated 27.01.2025 have been passed by the respondent no. 2 purportedly in exercise of powers conferred on him under Section 33, Section 87 and Section 88 of the GMDA Act.

5. On perusal of the provisions of the GMDA Act, 1985, it is found that the petitioner has an adequate and efficacious statutory remedy of filing an appeal against the impugned Order dated 27.01.2025. Chapter VIII of the GMDA Act under the heading - Appeals and the Appellate Authority, contains Section 71, Section 72 and Section 73. For ready reference, Section 71, 72 & 73 are quoted hereinbelow :-

71. Appointment of appellate authority. (1) Save as otherwise provided, the State Government shall appoint an appellate authority to hear all appeals arising out of the Page No.# 5/10

provisions of this Act. The decision of appellate authority shall be final.

(2) The person or persons appointed by the State Government as appellate authority shall have the qualification of a District Judge, or of becoming a member of the Assam Board of Revenue constituted under the Assam Boards of Revenue Act, 1962 (Assam Act XXI of 1962). The appointment shall be on such terms and conditions as the State Government may decide.

72. Duties of the appellate authority.-(1) The duties and powers of the appellate authority shall be as follows:

(a) to hear and decide appeals against the orders of the authority;

(b) to decide and hear appeals in respect of such other matters and exercise such other powers as may be entrusted to and conferred upon it by the State Government in accordance with the provisions of this Act.

(2) All appeals to the appellate authority shall be filed within a month from the date of the order appealed against. The time required for taking out copies of the order shall be excluded. The appellate authority may, however, in its discretion condone such delay in filing appeal for sufficient reasons.

73. Procedure of working of the appellate authority (1) The appellate authority shall conduct its proceedings in the prescribed manner after giving the opposite party or anyone interested in the order appealed against an give opportunity of being heard.

(2) The appellate authority may, at any time, call for any extract from any proceeding of the State Government or authority and call for any return or statement or report concerning or connected with any matter with which the authority has been authorised to deal.

(3) The appellate authority shall have all the powers of a Civil Court for the purposes of taking evidence on oath or enforcing the attendance of witnesses including the parties interested or any of them and compelling the production of documents and material objection if considered necessary.

(4) The appellate authority in its discretion may make any orders regarding the cost to Page No.# 6/10

be paid by any of the parties to the proceeding and the appellate authority shall have full power to determine by whom or out of what property and to what extent such costs are to be paid and the authority shall be bound to execute the orders of the appellate authority in accordance with the directions, if any, contained in the order and such costs or amounts awarded by the appellate authority shall be realised as arrears of land revenue.

6. By a Notification bearing no. GDD.49/94/Pt/44 dated 22.08.1996 issued under Section 71[2] of the GMDA Act, 1985, the State Government has designated the District & Sessions Judge, Kamrup, Guwahati as an Appellate Authority to decide appeals arriving of the provisions of the GMDA Act, 1985 with the approval of the Gauhati High Court.

7. In this connection, the directions made by a three-Judge Bench of the Hon'ble Supreme Court of India in Writ Petition [Civil] no. 295 of 2022 [in Re-direction in the matter of demolition of the structures, 2024 IMSC 866, are of the relevance and they are quoted hereinbelow :-

IX. DIRECTIONS

90. In order to allay the fears in the minds of the citizens with regard to arbitrary exercise of power by the officers/officials of the State, we find it necessary to issue certain directions in exercise of our power under Article 142 of the Constitution. We are also of the view that even after orders of demolition are passed, the affected party needs to be given some time so as to challenge the order of demolition before an appropriate forum. We are further of the view that even in cases of persons who do not wish to contest the demolition order, sufficient time needs to be given to them to vacate and arrange their affairs. It is not a happy sight to see women, children and aged persons dragged to the streets overnight. Heavens would not fall on the authorities if they hold their hands for some period.

91. At the outset, we clarify that these directions will not be applicable if there is an unauthorized structure in any public place such as road, street, footpath, abutting Page No.# 7/10

railway line or any river body or water bodies and also to cases where there is an order for demolition made by a Court of law.

A. NOTICE

i. No demolition should be carried out without a prior show cause notice returnable either in accordance with the time provided by the local municipal laws or within 15 days' time from the date of service of such notice, whichever is later.

ii. The notice shall be served upon the owner/occupier by a registered post A.D. Additionally, the notice shall also be affixed conspicuously on the outer portion of the structure in question.

iii. The time of 15 days, stated herein above, shall start from the date of receipt of the said notice.

iv. To prevent any allegation of backdating, we direct that as soon as the show cause notice is duly served, intimation thereof shall be sent to the office of Collector/District Magistrate of the district digitally by email and an auto generated reply acknowledging receipt of the mail should also be issued from the office of the Collector/District Magistrate. The Collector/DM shall designate a nodal officer and also assign an email address and communicate the same to all the municipal and other authorities in charge of building regulations and demolition within one month from today.

v. The notice shall contain the details regarding:

a. the nature of the unauthorized construction.

b. the details of the specific violation and the grounds of demolition.

c. a list of documents that the noticee is required to furnish along with his reply.

d. The notice should also specify the date on which the personal hearing is fixed and the designated authority before whom the hearing will take place;

vi. Every municipal/local authority shall assign a designated digital portal, within 3 months from today wherein details regarding service/pasting of the notice, the reply, the show cause notice and the order passed thereon would be available.

B. PERSONAL HEARING Page No.# 8/10

i. The designated authority shall give an opportunity of personal hearing to the person concerned.

ii. The minutes of such a hearing shall also be recorded.

C. FINAL ORDER

i. Upon hearing, the designated authority shall pass a final order.

ii. The final order shall contain:

a. the contentions of the noticee, and if the designated authority disagrees with the same, the reasons thereof;

b. as to whether the unauthorized construction is compoundable, if it is not so, the reasons therefor;

c. if the designated authority finds that only part of the construction is unauthorized/noncompoundable, then the details thereof.

d. as to why the extreme step of demolition is the only option available and other options like compounding and demolishing only part of the property are not available.

D. AN OPPORTUNITY OF APPELLATE AND JUDICIAL SCRUTINY OF THE FINAL ORDER.

i. We further direct that if the statute provides for an appellate opportunity and time for filing the same, or even if it does not so, the order will not be implemented for a period of 15 days from the date of receipt thereof. The order shall also be displayed on the digital portal as stated above.

ii. An opportunity should be given to the owner/occupier to remove the unauthorized construction or demolish the same within a period of 15 days. Only after the period of 15 days from the date of receipt of the notice has expired and the owner/occupier has not removed/demolished the unauthorized construction, and if the same is not stayed by any appellate authority or a court, the concerned authority shall take steps to demolish the same. It is only such construction which is found to be unauthorized and not compoundable shall be demolished.

iii. Before demolition, a detailed inspection report shall be prepared by the concerned Page No.# 9/10

authority signed by two Panchas.

E. PROCEEDINGS OF DEMOLITION

i. The proceedings of demolition shall be video-graphed, and the concerned authority shall prepare a demolition report giving the list of police officials and civil personnel that participated in the demolition process. Video recording to be duly preserved.

ii. The said demolition report should be forwarded to the Municipal Commissioner by email and shall also be displayed on the digital portal.

92. Needless to state that the authorities hereinafter shall strictly comply with the aforesaid directions issued by us.

93. It will also be informed that violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution.

94. The officials should also be informed that if the demolition is found to be in violation of the orders of this Court, the officer/officers concerned will be held responsible for restitution of the demolished property at his/their personal cost in addition to payment of damages.

8. Subsequent to the decision in 'Re-direction in the matter of demolition of structures', a two-Judge Bench of the Hon'ble Supreme Court has issued certain additional directions in Rajendra Kumar Barjatya and another vs. U.P. Avas Evam Vikas Parishad and others, 2024 SCC OnLine SC 3767.

9. Mr. Nayak, learned Standing Counsel, GMD has specifically referred to the directions contained in Clause [ix] to contend that any appeal if preferred, is to be disposed of by the appellate authority within a period of ninety days from the date of preferring the appeal.

10. As per sub-section [2] of Section 72 of the GMDA Act, 1985, an appeal is to be preferred within a month from the date of the order appealed against. In the case in hand, a period of limitation to prefer an appeal against the impugned Order dated 27.01.2025 has not yet expired. In any view of the matter, the Appellate Authority has also been vested with the Page No.# 10/10

jurisdiction to condone any delay in filing an appeal.

11. As an adequate and statutory remedy is available to the petitioner to assail the impugned Order dated 27.01.2025 under the provisions of the GMDA Act, 1985, this court is of the considered view that instead of pursuing this writ petition, the petitioner shall avail the statutory remedy of appeal under the GMDA Act as the Appellate Authority has been vested with all the powers of a civil court for the purposes of taking evidence on oath or enforcing the attendance of witnesses including the parties interested or any of them and compelling the production of documents and material objection, if considered necessary. On the other hand, a writ petition is ordinarily, not entertained if disputed question of facts fall for consideration.

12. In the above view of the matter, the writ petition is not entertained, reserving the liberty to the petitioner to avail the statutory remedy under the provisions of the GMDA Act by filing an appeal before the Appellate Authority within the period of limitation of one month from the date of the impugned Order dated 27.01.2025. In order to allay any apprehension regarding coercive action in terms of the Order dated 27.01.2025, it is observed that there shall not be any coercive action in terms of the Order dated 27.01.2025 till a period of one month from the date of the impugned order dated 27.01.2025. Any further interim relief after expiry of one month from 27.01.2025, is left open to the discretion of the Appellate Authority.

13. The Appellate Authority while considering the appeal shall give due regard to the direction made in Clause [ix] in the writ petition, Writ Petition [Civil] no. 295 of 2022 [supra], quoted above.

14. With the observations made and directions given above, the writ petition is disposed of. No cost.

JUDGE

Comparing Assistant