Page No.# 1/6 vs The Guwahati Metropolitan Development ...
2025 Latest Caselaw 3266 Gua

Gauhati High Court

Page No.# 1/6 vs The Guwahati Metropolitan Development ... on 18 February, 2025

Author: Manish Choudhury

Bench: Manish Choudhury

                                                                        Page No.# 1/6

GAHC010018172025




                                                                  2025:GAU-AS:1748

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

                                  Case No. : WP(C)/472/2025

            BINOD HAZARIKA
            S/O- LATE BHUBAN HAZARIKA,
            R/O- KHARGULI, GUWAHATI- 7,
            DISTRICT- KAMRUP(M), ASSAM.



            VERSUS

            THE GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY AND 2
            ORS.
            REP BY ITS CHIEF EXECUTIVE OFFICER, BHANGAGARH, GUWAHATI-5.

            2:THE CHIEF EXECUTIVE OFFICER
             G.M.D.A.
             BHANGAGARH
             GUWAHATI-5.

            3:THE COMMISSIONER
             GUWAHATI MUNICIPAL CORPORATION
             GUWAHATI
             PANBAZAR
             GUWAHATI-1

Advocate for the Petitioner   : MR. S P ROY, MS P DEY,MS. V RAI

Advocate for the Respondent : SC, G M D A, SC, GMC
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                                    BEFORE
                   HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                           ORDER

Date : 18.02.2025

Heard Mr. S.P. Roy, learned counsel for the petitioner and Mr. D. Saikia, learned Advocate General, Assam assisted by Mr. S. Borah, learned Standing Counsel, GMDA / GMC for all the respondents.

2. The bone of contention in this writ petition, preferred by the petitioner, is a two- storeyed RCC building at Kharguli which was allotted to him earlier in the year 1973. The petitioner, at that point of time, was an employee of the Gauhati Municipal Corporation [GMC] and he retired from service of the GMC on superannuation on 31.05.2009.

3. Subsequent to his retirement on superannuation, the petitioner was initially, served a Letter on 22.06.2012 by the respondent no. 2 to vacate the occupation of the two-storeyed RCC building at Kharguli. The said Letter was followed by a Notice dated 05.08.2014 on the subject : 'Notice for Vacating Un-authorized Occupation of Official Quarter of GMDA'. By the Notice dated 05.08.2014, the petitioner was inter alia asked to vacate the two-storeyed RCC building from his occupation within a period of one month from the receipt of the said notice.

4. The petitioner assailed the Notice bearing no. GMDA/DEV/72/2009/78 dated 05.08.2014 in a writ petition, W.P.[C.] no. 4770/2014. A Coordinate Bench of this Court after hearing the learned counsel for the parties and after perusal of the materials on record, disposed of the said writ petition by a Judgment & Order dated 07.01.2025.

5. One of the contentions raised on behalf of the petitioner in the writ petition, W.P.[C.] no. 4770/2014 was that the GMDA had no authority and jurisdiction to issue the Notice as the two-storeyed RCC building ['the Property', for short] was not vested on the GMDA under the provisions of Section 124 & 125 [1][b] of the Guwahati Metropolitan Development Authority Act, 1985. It was contended that the property belonged to the GMC by virtue of Section 2 [b] of the Gauhati Municipal Corporation Act, 1971.

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6. The relevant parts of the Judgment & Order dated 07.01.2025 are read as under :-

9. This Court upon hearing the learned counsels for the parties have also perused the provisions of Section 2 [b] of the Act 1971 as well as Sections 124 and 125 (1)

(b) of the Act of 1985. From a perusal of the above provisions, it is clear that Section 2 [d] of the Act of 1971 does not refer to the GDA, rather it only refers to the local authorities as mentioned in Section 2 of the Act of 1971 On the other hand, a perusal of Section 124 of the Act of 1985 categorically mentions that it is only after coming into effect of the Act of 1985, the State Government shall vide notification in the Official Gazette declared that the GDA constituted under the provisions of the Assam Town and Country Planning Act, 1959 shall be dissolved with effect from such date as may be specified in the notification and the GDA shall stand dissolved accordingly. Under such circumstances, the question of the dissolving of the GDA prior to the coming into effect of Section 124 of the Act of 1985 does not arise. Additionally, a perusal of Section 125 [1] [b] of the Act of 1985 also would show that all the properties belonging to the GDA would stand vested upon the GMDA statutorily.

10. Now the next question which arises is as to whether the petitioner can be asked to vacate from the official quarter of the GMDA on the basis of the communication dated 05.08.2014. This Court having perused the said impugned communication is of the opinion that the said document does not suffer from any error requiring this Court to exercise its writ jurisdiction.

11. Accordingly, the instant writ petition therefore stands disposed of with the following observations and directions:-

[i] This Court finds no merit in the challenge to the communication dated 05.08.2014 issued by the Chief Executive Officer, Guwahati Metropolitan Development Authority.

[ii] This Court further directs that the respondent authorities, more particularly the Guwahati Metropolitan Development Authority can evict the petitioner only by following the due process, i.e. by Page No.# 4/6

applying the applicable provisions of law.

[iii] Interim order, if any, stands vacated.

7. Pursuant to disposal of the writ petition, W.P.[C.] no. 4770/2014 by the Judgment & Order dated 07.01.2025, the respondent no. 2 has served a notice dated 24.01.2025 upon the petitioner whereby the petitioner was asked to vacate the Property within seven days from the date of service of the notice. The notice also contemplated actions like recovery of penal rent for the period of the petitioner's alleged unauthorized occupation.

8. Mr. Roy, learned counsel for the petitioner has submitted that by the Judgment & Order dated 07.01.2025, the Court had specifically directed the respondent GMDA authorities to evict the petitioner only by following the due process, that is, by applying the applicable provisions of law. Mr. Roy has, thus, contended that the respondent GMDA authorities ought to have taken recourse to the provisions of the Assam Public Premises [Eviction of Unauthorized Occupants] Act, 1971 ['the Act, 1971' or 'the 1971 Act', for short] as the Property is undoubtedly a public premises, defined under Section 2[c] of the Act, 1971. He has further submitted that any exercise of vacating public premises ought to have been initiated with issuance of a notice to show-cause under Section 4 of the Act, 1971 by an Estate Officer. As the impugned Notice is not in conformity with the provisions of the Act, 1971, more particularly, Section 4 thereof, the impugned Notice dated 24.01.2025 is liable to be set aside and the respondent authorities cannot act further on it.

9. In response, Mr. Saikia, learned Advocate General, Assam has fairly submitted that the Property in question, if the provisions of Section 2 [c] of the Act, 1971 are broadly interpreted, could be termed as a public premises. At the same time, he has submitted that in case of strict literal interpretation of Section 2 [c] of the Act, 1971, the Property may not be a public premises. He has submitted that notwithstanding the same, the respondent GMDA authorities are in the process of appointing an Estate Officer for the purpose of initiating the proceedings for eviction of unauthorized occupants in respect of properties including the Property in question, belonging to the respondent GMDA. The Property in question is one of such properties where the provisions of the Act, 1971 would be made applicable. Mr. Saikia Page No.# 5/6

has further submitted that in the impugned Notice dated 24.01.2025, it has been indicated that the respondent GMDA would proceed with eviction measures as per law and such measures would be taken in due course. The Notice has mentioned that apart from taking measures for eviction as per law, appropriate proceedings for recovery of penal rent for the period of petitioner's unauthorized occupation of the Property in question after calculating the penal rent as per the applicable rates, would also be initiated.

10. I have given due consideration to the submissions of the learned counsel for the parties. From the submissions of the learned counsel for the parties, it has emerged that the impugned Notice dated 24.01.2025 is prima facie not a notice under Section 4 of the Act, 1971.

11. This Court has taken note of the submissions of the learned Advocate General, Assam that a process of appointing an Estate Officer for the respondent GMDA to initiate proceedings for eviction of unauthorized occupants from the properties belonging to the GMDA is in process and immediately after appointment of an Estate Officer, notices would be issued to the unauthorized occupants including the petitioner under Section 4 of the Act, 1971.

12. As the impugned Notice dated 24.01.2025 is apparently not a notice under Section 4 of the Act, 1971, the apprehension allayed by the petitioner as regards his forcible eviction from the Property in question is not found to be present, as on date.

13. Mr. Roy, responding to the submissions of the learned Advocate General, has submitted that in case of issuance of a notice under Section 4 of the 1971 Act, the petitioner would participate in the proceedings and in such proceedings, the petitioner should be given a reasonable opportunity of being heard by the Estate-Officer.

14. As a Notice under Section 4 of the Act, 1971 is being contemplated to the petitioner and the petitioner is ready and willing to participate in the proceedings on issuance of such a notice under Section 4 of the 1971 Act and there is no immediate threat as regards forcible eviction of the petitioner from the Property in question, this writ petition is closed, at this stage, by taking note of the submissions of the learned Advocate General that the respondent Page No.# 6/6

GMDA authorities would initiate proceeding under the 1971 Act by issuing a notice under Section 4 of the 1971 Act to the petitioner as regards the petitioner's unauthorized occupation of the Property in question and the submissions of Mr. Roy, learned counsel for the petitioner that in case such a notice is issued and served on the petitioner, the petitioner would participate and cooperate in the proceedings to be undertaken by the Estate-Officer of the GMDA. It is further made clear that this Court has not made any observation as regards the merits of the claims of the respective parties. It is further observed that, the impugned notice dated 24.01.2025 will abide by the decision to be taken after conclusion of such proceedings under the provisions of the Assam Public Premises [Eviction of Unauthorized Occupants] Act, 1971.

JUDGE

Comparing Assistant