Page No.# 1/33 vs The State Of Assam And 4 Ors
2025 Latest Caselaw 2485 Gua

Gauhati High Court

Page No.# 1/33 vs The State Of Assam And 4 Ors on 30 January, 2025

                                                               Page No.# 1/33

GAHC010027002023




                                                         2025:GAU-AS:1058

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

                       Case No. : WP(C)/753/2023

         MEGHMALLAR ESTATES AND SERVICES PRIVATE LIMITED
         39, DR. BN SAIKIA ROAD, SURVEY,
         BELTOLA, GUWAHATI, ASSAM,
         REPRESENTED BY ITS MANAGING DIRECTOR, SHRI ANUR SAIKIA.

         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REPRESENTED BY PRINCIPAL SECRETARY, GUWAHATI DEVELOPMENT
         DEPARTMENT,
         C-BLOCK, 3RD FLOOR, ASSAM SECRETARIAT,
         DISPUR, GUWAHATI-6.

         2:THE GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY
          STATFED BUILDING
          BHANGAGARH
          GUWAHATI- 781005
          REPRESENTED BY ITS CHAIRMAN.

         3:THE CHIEF EXECUTIVE OFFICER
          GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY
          SATFED BUILDING
          BHANGAGARH
          GUWAHATI- 781005.

         4:THE COMMISSIONER
          GUWAHATI MUNICIPAL CORPORATION
          PANBAZAR
          GUWAHATI- 781001.

         5:M/S PROTECH HOUSING
         A PARTNERSHIP FIRM UNDER THE INDIAN PARTNERSHIP ACT
          1932 HAVING ITS REGISTERED OFFICE AT 605
          PROTECH CENTRE
                                                                            Page No.# 2/33

           6TH FLOOR
            GS ROAD
            GUWAHATI- 781006
            REPRESENTED BY ITS PARTNER MANOJ JALAN
            S/O LATE MAHABIR PRASAD JALAN.

           6:MR. ASHOK SINGHAL
            RESIDENT OF MINISTER COLONY
            DISPUR
            GUWAHATI-781006
           ASSAM

Advocate for the Petitioner : MR. K N CHOUDHURY, MR. D J DAS,MR. RANGON
CHOUDHURY,N GAUTAM,MR. R J DAS

Advocate for the Respondent : SC, GDD, MR. B GOGOI (R-6),MR. R BORPUJARI (r-6),MR. B D
DEKA,MR A BHATRA,FOR CAVEATOR,SC, G M D A,SC, GMC

                                 BEFORE
                HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

                                       JUDGMENT

Date : 30-01-2025

1. Heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. R.J. Das, learned counsel for the petitioner. Also heard Mr D Saikia, learned Advocate General assisted by Mr. S Bora, learned counsel for the respondent GMDA & GMC. Also heard Mr. K.P Pathak, learned senior counsel assisted by Mr. B.D. Deka, learned counsel for respondent No.5 and Mr. D. Das, learned senior counsel assisted by Mr. D Gogoi, learned counsel for respondent No.6.

2. The present writ petition is filed with the following prayers:

I. Setting aside the Guwahati Metropolitan Development Authority (GMDA) permit dated 10.09.2020, the Guwahati Municipal Corporation (GMC) permit dated 19.09.2020 being illegal on the ground that in the said Page No.# 3/33

permissions Tarun Nagar By Lane No.2 has been taken to be 8.35 meters ignoring the actual width of the road which resulted in FAR of 275 in favour of the respondent No. 5.

II. The decision of the respondent authorities to grant FAR of 275 (2.75) to respondent No.5 is also under challenge on the grounds of actual entitlement of FAR 175 (1.75).

3. The matter pertains to the construction/development of a residential apartment project in the Tarun Nagar locality of Guwahati (hereinafter referred to as "the Project"). As is clear from the prayers, the dispute revolves around the GMDA permission dated 10.09.2020 and the GMC permission dated 19.09.2020.

4. It is also revealed from the elaborate pleadings and arguments of the learned counsel for the parties that the project construction has a long litigation history and such facts are essential for proper determination of the present litigation. Therefore, before dealing with the elaborate arguments advanced by the learned senior counsels for the contesting parties, let this Court, record the facts in brief in the following paragraphs:-

I. The petitioner Meghmallar Estate & Services Pvt. Ltd is a company registered under the Companies Act, 2013 (hereinafter referred to as Meghmallar). It is a builder/developer, who has built/developed various residential/commercial projects in the city of Guwahati.

II. The respondent No.5, namely, M/S Protech Page No.# 4/33

Housing is a partnership firm registered under the Indian Partnership Act, 1932 (hereinafter referred to as "Protech"), also carrying construction business.

III. Meghmallar, initially started a development project of a multi-storeyed residential building/apartment with different blocks and recreational facilities etc., over a plot of land measuring 13 bighas 4 lechas situated at By Lane No.2, Tarun Nagar, Guwahati and it was named as "Meghmallar City Center Residency, (hereinafter referred to as the Project Land).

IV. The Project started by Meghmallar went into difficulties due to financial crunches, prolonged litigation (which will separately be dealt with at the appropriate stage) raised by the people of the locality and finally, in the year 2018 permission for construction was granted to Meghmallar with 175 FAR, treating the Road abutting the project to be 8 meter as per the existing building bye-laws. However, due to the trouble faced by Meghmallar and due to its financial incapacity, Meghmallar entered into a settlement with Protech for certain considerations allowing Protech to continue with the project.

V. Subsequently, Protech applied for fresh permission and Protech was granted an FAR of 275 treating the road abutting the project to be 8.35 meters, which according to the Meghmallar is not permissible under law, Page No.# 5/33

rather the FAR should be 175, which was originally granted to Meghmallar and accordingly, the challenges are made as recorded hereinabove.

5. In the aforesaid backdrop, Mr. K.N. Choudhury, learned senior counsel argues the following:

I. The permissions granted to Meghmallar and a report dtd.28.12.2013 submitted by GMDA authority before this Court in the proceeding of WP(C) No.7057, Mr. Choudhury, learned senior counsel contends that treating the road to be 8 meters in width, Meghmallar was granted permission with FAR of 175 in terms of the Building Byelaws. However, for extraneous consideration and the influence of the Minister of the Guwahati Development Department (respondent No.6), who happens to be the controlling Minister of GMDA and father of two of the partners of Protech, granted permission of 275 FAR, in favour of Protech which is out and out illegal resulting in violation of the petitioner's legal right to get the building constructed as per law, not only in terms of agreement entered between Meghmallar and Protech, but also in terms of existing byelaws.

II. the order dated 24.02.2014 passed by the Chairman, District Disaster Management Authority, (hereinafter referred to as DDMA) in a proceeding preferred by the local people, objecting to the project, ( may not be necessary) Page No.# 6/33

III. It is the contention of Mr. Choudhury, learned senior counsel that Meghmallar having a definite share in the building to be constructed by Protech under the agreement with Protech, the constructed building shall become vulnerable for demolition, given the illegal permission granted. According to Mr. Choudhury, the influence of the Minister is writ large, inasmuch as Protech applied for planning permission before the GMDA on 01.09.2020, a committee, without sanction and authority of law was constituted at the behest of respondent No. 6,

Minister and the permission was granted within 10 th September 2020 i.e., within 9 days, whereas, between this 9 days there were three holidays and such factum demonstrates the colourable exercise of power at the behest of the Minister, favouring his two sons by ignoring the prescription of law. Therefore, on this account alone, the impugned permissions are liable to be set aside and quashed.

IV. According to Mr. Choudhury, the Minister ought not to have constituted the committee, when two of his sons are the beneficiaries of such permission and therefore, it is a clear case of bias. In this regard, he places reliance on the judgment of the Hon'ble Supreme Court in the case of State of Punjab Vs. Davindra Pal Singh Dhullar and others reported in 2011 14 SCC

770. Page No.# 7/33

V. Mr. Choudhury, learned senior counsel, referring to the MOU entered into between Meghmallar and Protech, contends that it was specifically agreed in Clause 15 of such MOU that "Meghmallar shall have no objection, if Protech obtains fresh permission and/or renew/modify the existing NOC as per law. However, as the NOC has been granted dehors the existing law, Meghmallar has a legal right under the Building Bye-laws, beyond its private right, to get the project constructed in terms of existing norms, and such right has been violated by the GMC and GMDA authorities at the behest of respondent No.6. VI. Mr. Choudhury, placing reliance on the order dated 14.02.2014 passed by the then Chairman, DDMA, where a specific conclusion was made by the DDMA that no permission can be granted to construct a building of such a magnitude in the locality, where there is no existing road of more than 8 meters width, argues that the permissions granted to Protect violates the existing building norms and having been issued in a colourable exercise of power and under the influence of the Minister, such permission is required to be set aside and the writ petition should be allowed.

VII. Relying on the revised permission granted to Meghmallar on 03.11.2018, learned Senior Counsel for the petitioner contends that the permission and FAR were granted on the basis of existing 8-meter-width road.

Page No.# 8/33

However, the new permission in favour of Protech was granted taking width of the same road to be 8.35 meters and such conclusion was arrived only to facilitate higher FAR in favour of Protech at the behest of respondent No.

6. According to him, the road width cannot increase from 8 meter to 8.35 meter within 2 years.

VIII. Referring to a report which was submitted by GMDA before this Court in the proceeding of WP(C) No. 7057/2013, Mr. Choudhury further contends that in the aforesaid report, GMDA authority candidly admitted that the average width of Tarun Nagar bye lane 2 to the project is 7.50-meters, taking note of highest at the junction (7.40 meter), at the maximum 8.50 meters and minimum 6.50 meters. Therefore, according to Mr. Choudhury, the calculation of GMDA authority that the road width is 8.35 meters is against the available record and therefore, the permission so granted is illegal and liable to be set aside. IX. While concluding his argument Mr K.N. Choudhury learned senior Counsel submits that when the record clearly shows that the road width is not more than 8 meters, the GMDA and GMC could not have granted FAR of 275 in favour Protech in violation of the extant norms and bye-laws.

6. Per contra, Mr. D Saikia, learned Advocate General, appearing on behalf of the two local urban authorities i.e. Guwahati Page No.# 9/33

Municipal Corporation (GMC) and Guwahati Municipality Development Authority (GMDA) contends :

I. The grievance raised in this writ petition is a private dispute between Meghmallar and Protech and the statutory authorities are being squeezed in between and Meghmallar is trying to create pressure upon these institutions for its undue gain. According to Mr. Saikia, Meghmallar has all throughout been seeking the highest FAR applicable, claiming that the road width abutting the project is more than 8 meters, inasmuch as, it is on record that Meghmallar itself had contended before the DDMA during the enquiry that road width is 8.5 meters and therefore, Meghmallar, at this stage, cannot be allowed to reprobate its stand.

II. Mr. Saikia, further argues that according to Meghmallar the road width was more than 8 meters and therefore, Meghmallar was entitled to a FAR of 200 based on such road width. It was the grievance of Meghmallar that they were granted less FAR i.e., FAR of 175. Similarly, Protech was granted FAR as per the existing building Byelaws, which is more than what was granted to Meghmallar and therefore, Meghmallar became wise and initiated the present litigation only as a pressure tactic to have a share of the enhanced FAR.

III. It is the further contention of Mr. Saikia that when Protech applied for permission in terms of the settlement Page No.# 10/33

arrived at between the Meghmallar and Protech, the Building bye law was amended and in terms of the new bye-law, the height restriction on buildings were removed subject to the condition of keeping 40% of open space. FAR of 275 was also prescribed in the Amended Building bye laws subject to fulfilment of twin conditions of having more than 10 bighas of land and existence of a road having more than 8 meters in width. As Protech qualifies such conditions i.e. having 13 bighas and 4 lechas of land and after measuring the road through the revenue staff, the Authorities found the average road width is 8.35 meters, Protech was granted FAR of 274. Therefore, the permission granted by GMDA and GMC is as per the new bylaws. IV. According to Mr. Saikia, as per the settlement arrived between Meghamallar and Protech, Protech is entitled to apply for new permission as per law and in the event, additional FAR is granted, no share was provided to Meghmallar and for this reason, Meghmallar has preferred the present writ petition to create pressure upon the authorities so that resultant pressure is put on the Protech to grant more share to it and therefore, such writ petition should be dismissed and such litigant should be imposed with a heavy cost for abuse of the process of the court. V. Mr. Saikia, Learned Advocate General further contends that Meghmallar is also guilty of suppression of material facts and guilty of misleading the Court.

Page No.# 11/33

Meghmallar is taking different stands at different stages which suits them. Meghmallar places reliance on the part of the order of the DDMA, which is now favourable to it for the purpose of this case, however, it has withdrawn the part of such Report which goes against its present contention inasmuch as it was specifically recorded by the Chairman DDMA that Meghmallar claims the average road width to be 8.5 meters. Such conduct of Meghmallar itself shows the motive of this litigation.

VI. While concluding his arguments, Mr. Saikia, learned counsel submits that GMC and GMDA have granted permission as permissible under byelaws/rules which were applicable on the date of application and that they have not violated any provision of law. The recommendation for permission was granted by a committee. The said committee verified the road width not only through an inspector of GMC but also through the Revenue staff and applied the formula prescribed in the Bye-Law for calculation of road width and accordingly found the width of the road as 8.35 metres. Therefore, this Court may not like to exercise its power under Article 226 of the Constitution of India to interfere with such decision that too in aid of such frivolous litigant in absence of any cogent material.

7. Mr. K.P. Pathak, learned senior counsel appearing for Protech, while supplementing the arguments of Mr Saikia, contends:

Page No.# 12/33

I. Protech has obtained the planning permission as well as NOC from the GMDA and GMC respectively as per Building Byelaws 2020, whereas the earlier permission to Meghmallar was granted under the building bye-law 2014 and according to Mr. Pathak, not a single additional area has been permitted to be constructed by Protech under bye-law 2020. It is his further contention that even if it is assumed that Meghmallar is having any grievance against the GMC authority, its remedy is not a writ petition, rather an efficacious alternative remedy under Sections 71 and 73 of the GMDA Act, 1985, as well as under Section 101 of GMC Act is available to Meghmallar. Therefore, on this count also this writ petition is liable to be dismissed. According to Mr. Pathak the factual dispute as regards the average width of the road can be determined by such authorities. It is also contended that Meghmallar has already opted for arbitration against the grievances, it is having against Protech and therefore, this writ petition is liable to be dismissed on this count also.

8. Mr. D Das, learned senior counsel appearing for respondent No. 6 (Minister) contends that:

I. Respondent No.6 has unnecessarily been dragged into the present proceeding based on certain incorrect facts. Referring to paragraph 22 of the writ petition, Mr. Das, learned senior counsel submits that the allegation made in such paragraphs is out and out incorrect Page No.# 13/33

and Meghmallar, being a builder, is very much aware that the respondent No.6 had assumed office as Minister of Guwahati Development Department on 10.05.2021, much after the agreement between "Protech" and Meghmallar was entered and much after the building permission was granted to Protech. It is contended by Mr. Das, that in the aforesaid backdrop, the present vexatious petition is not only liable to be dismissed but the petitioner should also be imposed with heavy cost for forcing respondent No.6 to contest the present litigation without any cause of action. II. Faced with such an argument, the petitioner Meghmallar, filed an affidavit taking a stand that though respondent No. 6 was not the Minister at the relevant point of time, however, he was the Chairman of GMDA and therefore, he was under the capacity to influence the decision-making process and in fact, for him, the illegal permissions were hurriedly granted.

Respondent No. 6 had filed a reply contending that such an affidavit filed by the petitioner changes the nature and character of the pleading and cannot be accepted at this stage after the conclusion of the hearing. III. On merit of such plea, It is contended by Mr.Das, learned senior Counsel that respondent No.6, though was a chairman, never participated in any of the proceedings relatable to the permissions in question and rather it was the Committee constituted under Section 12 of the GMDA Page No.# 14/33

Act, 1985, for scrutiny and recommendation of planning permit proposal on plot area more than 10 bighas, recommended the permission after following due process. Therefore, according to Mr Das, no bias or colorable exercise of power or influence can be attributed to respondent No.6.

9. I have given anxious consideration to the arguments advanced by the learned counsel for the parties. Perused the materials available on record. The findings and the conclusions of the Court are recorded herein below:

I. The fundamental argument of Mr. K.N. Choudhury, learned senior counsel resolves around the road width based on which the planning permission and building permission were granted. According to him, the road width is not above 8 meters and therefore, Protech could not have been granted FAR of 275 and such illegality has been committed under the influence of respondent No.6 to favour his two sons, who are the partners of Protech. Before dealing with the alleged influence and colourable exercise of power at the behest of respondent No.6, let this court first deal with the issue of road width and the procedure followed while granting permission. II. The NOC initially granted to Meghamallar, in the year 2009, was based on a "proposed road width" of 8.5 meters and as per the relevant bye-law holding the field then, grant of FAR was permissible based on the "proposed Page No.# 15/33

road width". Accordingly, based on the proposed road width of 8.5-meter FAR of 175 was granted to Meghmallar, though it was entitled to FAR of 200. Such fact is specifically pleaded in paragraph 12 of the writ petition. It has also been contended by Meghmallar that such NOC granted in its favour in the year 2009 was rightly given. III. At the relevant point in time, for the grant of FAR, under Building Byelaws for Guwahati Metropolitan Development Authority, 2006, (hereinafter referred to as Byelaw 2006), the road was defined under Section 2.52 as meaning and including any highway, street, lane, pathway, alley, passageway, carriageway, footway, square, bridge, whether private or public, whether thoroughfare, whether existing or proposed in any scheme, culverts, sidewalks and traffic islands.

IV. It is important to note here that though NOC was granted by GMDA to Meghmallar on 20.10.2009 & 10.11.2009, one condition was laid that Meghmallar is required to construct a bridge over river Bharalu connecting the street abutting the building (Anil Nagar Bye-Lane-1) from Tarun Nagar Bye Lane No.2, with due approval from Water Resources Department. Thus Tarun Nagar Bue-lane- 2 was to be considered as the road after connecting the said road with the plot through the Bridge. However, one entity called Tarun Nagar Unnayan Samiti objected to the construction and the project was initially stopped upon Page No.# 16/33

receiving such a complaint. Subsequently, the permission was modified and another permission dated 29.07.2010 was issued. Thereafter, on 17.05.2012, the construction was once again stopped by GMC for the reason that NOC was granted by GMDA expired on 29.11.2011 and that the approach bridge was not constructed and no road of 8.5- meters width was found to be in existence. Subsequently, the NOC was renewed on 8.11.2012. Thus, one of the reasons to stop the construction was that there was no existing road having 8.5 meter width and the bridge was not constructed.

V. Thereafter, on 21.11.2013, the Chairman, District Disaster Management Authority-cum-Deputy Commissioner on a public complaint, in exercise of his power under the Disaster Management Act, 2005 directed Meghmallar to stop the construction. Subsequently, Meghmallar preferred WP(C) 7057/2013, alleging inaction of the Chairman, DDMA and the said writ petition was disposed of by this court under its order dated 04.12.2013 with a direction to the Chairman DDMA to decide on the subject matter. Thereafter, the Chairman, DDMA by its order dated 14.02.2014 disposed of the proceeding before it and concluded the following:

A. Permission was granted based on the proposed bridge whereas permission should have been based on the Page No.# 17/33

existing road on Anil Nagar side and "proposed road"

cannot be the criteria for giving permission B. No study was done on the impact of the flow of traffic through Tarun Nagar once the bridge was constructed. C. The public complaint is genuine in nature. D.Accordingly, the NOC issued is to be reviewed by fixing responsibility upon erring officials. E. The Circle Officers to verify encroachment of roadside land on both sides of bye-lane 2 of Anil Nagar etc; F. The Water Resources Department is to study the possibility and option of the speedy flow of rainwater. VI. In the meantime, Tarun Nagar Unnayan Samiti challenged the NOC issued in favour of Meghmallar dated 20.10.2009, 19.11.2009 and 29.07.2010 in WP(C) No.2576/2014. During the pendency of the aforesaid writ petition, the DDMA initially permitted Meghmallar to dismantle the existing "flood wall" on the left bank of river Bharalu to facilitate construction of the bridge and subsequently, by order dated 25.01.2016, DDMA reviewed/recalled the order dated 14.02.2014 passed earlier.

VII. In the meantime, Tarun Nagar Unnayan Samiti filed it's second writ petition registered as WP(C) 135/2016, assailing the aforesaid orders of DDMA favouring Meghmallar. During the pendency of such writ petition, Meghmallar also approached this court for the second time Page No.# 18/33

with a grievance that the GMDA had not issued the revised NOC in terms of the order of review by DDMA dtd.14.02.2014.

VIII. The aforesaid three writ petitions i.e., WP(C) 2576/2014 & WP(C) 135/2016(preferred by Tarun Nagar Unnayan Samiti) and WP(C) 1783/2017 (preferred by Meghmallar) were disposed of by this court by a common judgment dated 27.08.2018, holding that there is hardly any scope to interfere with the matter as regards issuance of NOC for construction, as in the meantime the bridge has been constructed. Thus, this Court neither interfered with the NOC granted in favour of Meghmallar which was under challenge in the writ petition preferred by Tarun Nagar Unnayan Samiti nor did it interfere with the order of DDMA which reviewed the earlier order dated 14.02.2014. The fact remains that such a decision was not challenged by Tarun Nagar Unnayan Samiti and the Meghmallar was granted revised permission on 03.11.2018. Thus, it is clear that this Court did not interfere with the order of DDMA dated 30.01.2015 or 25.01.2016 whereby, the permission to demolish the wall was granted and the earlier order dated 14.02.2014 was recalled. In the revised permission granted on 03.11.2018, the road width was treated to be 8 meters. IX. Thus, what is discernible from the aforesaid facts is that initially FAR of 175 was granted based on the proposed road width of 8.5 meters. Subsequently, revised Page No.# 19/33

permission and FAR were granted to Meghmallar based on an existing road width of 8 meters inasmuch as, the concept of "proposed road width" prescribed under bye-law 2006 was done away with with and the concept of existing road width was brought under the bye-law 2014. X. At that stage and after receipt of the revised permission on 03.11.2018, the MOU between Meghmallar and Protech was entered on 09.11.2019. The amended bye-law 2020 came to effect on 05.05.2020, when such amendment was published in Assam Gazette Extra Ordinary No.186. After the MOU dated 09.11.2019, on 01.09.2020 Protech submitted application for planning permit. Thus, on the date of the submission of the application for a planning permit before the Urban Authority, the amended bylaws were holding the field.

XI. As recorded hereinabove, in terms of the amended bye-law, more particularly, amended bye-law 26, FAR of 225 was permissible, when the road width is above 8 meters and up to 15 meters and the plot size is above 5 bighas and up to 10 bighas and that coverage area is restricted to 40%.

XII. In the report referred by Mr. K.N. Choudhury, learned Senior counsel, the road width was reported to be 7.5 meters in width as on 24.12.2013 and such calculation was made on the basis of the average of three points i.e. at the junction, at the maximum and at the minimum, as per Page No.# 20/33

the prescription of byelaw. At that relevant point of time the width at the junction was 7.40 meter, at the minimum it was 6.50 meters and at the maximum, it was 8.50 meters. Said report also discloses that the road width was taken as 8.5 meters as there are other connecting roads to the project site. In the report, it was also projected that the proposed road width of 8.5 meter was taken as per the modified

master plan and joint regulation of notified areas on 25th September, 1986.

XIII. This Court has perused the original record pertaining to the grant of NOC/planning permission produced by Mr. S. Bora, learned counsel for the GMC and GMDA so far the same relates to the grant of permission to Protech. As there is no dispute as regards the earlier permission granted to Meghmallar, this Court will not deal in detail with earlier permission granted to Meghmallar and rather confine itself to the records pertaining to the grant of NOC/planning permission in favour of Protech. From the record, the following facts could be gathered:-

(a) The application for permission was submitted by Protech in terms of the amended Byelaw, 2020 on 11.07.2020

(b) On 02.09.2020, one Mr. S. Islam, Inspector of GMDA visited the site and thereafter, he submitted his checklist for building permission on 08.09.2020. Along with the aforesaid checklist, the Page No.# 21/33

report of the revenue staff, disclosing the measurement of the road was annexed. The report of the Mandal (Revenue Staff) reflects that the Nabin Nagar Bye-lane-2 has different widths up to the Bharalu bridge constructed by Meghmallar, (ranging from a maximum 8.4 meters and a minimum of 4.5 meters) over the bridge excluding the width of the road in front of the plot which is 12.5 meters. The Inspector calculated the average road width to be 8.20 meter taking 12.50 meter in front of the plot, 4.50 meters over the bridge and 7.60 meter.

(c) In the meantime, the Chairman, GMDA (respondent No.6) on 03.09.2020 constituted a Three Members Committee consisting of the then Secretary, GMDA, the Assistant Planner, GMC & the Town Planner 1 GMDA and the Town Planner, GMDA for scrutiny and recommendation of the planning permit proposal, when the plot area is more than 10 Bighas.

(d) The aforesaid committee visited the site on 05.09.2020. Accordingly, the matter was placed before the Town Planner on 08.09.2020. The road width was noted by this committee to be 8.35 meters taking into consideration the Minimum road width to be 4.5 meters over the bridge, 8.05 meters Page No.# 22/33

at the junction and 12.5 meters in front of the project plot. Thus, the Inspector reported the road width to be 8.20 meters and the committee considered the road width to be 8.35 meters.

XIV. Now, let this Court deal with the relevant provisions of bye-laws relating to the grant of FAR and the Road width. It is an admitted position that when the last NOC was granted to Meghmallar, the relevant byelaw for grant of permission holding the field was the Guwahati Building Construction (Regulation) Byelaws 2013. It is also an admitted position that at the relevant point of time, when the permission was granted in favour of Protech pursuant to the MOU entered between Meghmallar and Protech, the Building Byelaw was amended and the amended bye-law 2020 was holding the field.

XV. Section 26(1) of Byelaw 2014 deals with FAR and Ground coverage for various types of buildings and in terms of the said bye-law when the road width is 6.6 meters to 8 meters, maximum FAR permissible was 175 with a maximum ground plus 7 floors, subject to the condition that the plot size is above 6690 sq. meter (5 bighas). As per the said provision, when the road width is above 8 meters and up to 15 meters minimum of 200 FAR and a maximum of 225 FAR can be granted. Such Byelaw 26 was amended by Guwahati Building Construction (Regulation) (Amendment) Byelaw Page No.# 23/33

2020. As per the amended Byelaw, when plot size is above 6690 sq. meters (5 bighas) and up to 13380 sq. meters (10 bighas), subject to fulfilment of the conditions, firstly, that the coverage is 40%, and secondly, that the existing road width is above 8 meters and up to 15 meters, the permissible FAR is

275. In the amended bye-law no prescription as regards the height/floor of the building is made, if the aforesaid conditions are fulfilled. Thus the permission granted to Meghmallar was under pre-amended bye-law and permission granted to Protech is under post amendment bye-law, the vital issue is as regards the width of the road inasmuch as there is no dispute as regards the plot size or coverage. XVI. In terms of the bye-laws, (pre and post- amendment), the width of the street means the clear average width of the existing carriageway, footpath and drainage only on which the building and plot abut. As per the building bye- law, the calculation is to be made by taking the width of the road at the last junction point leading to the plot, in front of the plot and at the point where the road width is minimum. XVII. In terms of the provision of section 38, width of the road is to be calculated by taking the width of the road at the last junction point leading to the plot, in front of the plot and at the point where the road width is minimum. It is also prescribed that in cases where the width of the streets is not regular or uniform all along, the minimum road width available at entry point, in front of the plot and some other Page No.# 24/33

points are to be taken.

XVIII. In the case in hand and as recorded hereinabove, it is on record that while calculating the road, the inspector considered the minimum road width to be 4.5 meter over the bridge, any one of the width (7.6 meter) and width of the road in front of the building i.e. 12 meter and accordingly, the road width was treated to be 8.20 meters. However, the Committee maintaining the other two road width (i.e. 12.5 meter and 4.5 meters) added 8.05 meters at junction point of Tarun Nagar Bye Lane 2 and thus concluded that the road width is 8.35 meters. Thus, from either of the calculation the road width was more than 8 meters.

XIX. This Court also records that when the competent authority, after inspection of the site through the revenue staff and its Inspector, concluded that the road width was 8.35 meters and when while doing so, the prescription of section 38 was followed by considering the road width at the junction point of Tarun Nagar Bye lane 2, road width in front of the building and minimum over the bridge was taken, this Court in exercise of its power of judicial review would not like to interfere with such finding of facts until and unless it is shown by the petitioner by adducing cogent material that such facts projected are blatant lies which Meghmallar has failed.

XX. The permissions are to be granted on the basis of existing road width abuting the plot. Such road was Page No.# 25/33

measured while granting permission to Meghmallar and also while granting permission to Protech. Therefore, this court cannot upheld the contention of Meghmallar that as the permission was granted to Meghmallar considering the road width to be 8 meters, the road width cannot be more than 8 meters, more particularly, when there are materials on record showing that prior to granting permission in favour of Protech, road was once again measured as recorded hereinabove and that Meghmallar itself has been claiming that road width is more than 8 meter. Therefore, in the given facts of the present case, such an issue cannot even be entertained at the behest of Meghmallar, who all along has projected the road to be more than 8 meters and even raised its grievance of grant of less FAR by the authorities ignoring such road width.

XXI. From the aforesaid, it is seen that road width was calculated based on the prescription made under the Building Byelaw applicable and on the basis of measurement of the road width made by the revenue Staff. This Court also cannot find fault with the committee while taking one of the road widths to be 8.05 meters for the reason that such a course of action is permissible inasmuch as the Building byelaws, 2014 prescribes that beyond minimum and maximum points, any of the widths may be taken to arrive at the road width when the road width is not uniform. It is also an admitted fact that the road width is not uniform. Even the road width detailed in the Page No.# 26/33

report earlier filed before this Court in the proceeding of WP(C) No. 7057/2013, the road width was not uniform. The other road widths at different points measured for the purpose of granting permission to Meghmallar are similar to the road width measured pursuant to the application made by Protech, except the road width of 12.5 meters in front of the project land, which was not shown and/or was not available, when permission was granted to Meghamallar. Such measurements made by the revenue staff and available on record cannot be lightly interfered with in absence of any pressing and cogent material, which in the face of it creates serious doubt as regards its genuinity and/or establishes it to be not correct.

XXII. Now, let this Court deal with the arguments of Mr K.N. Choudhury, that width of the road i.e. Anil Nagar bye lane-1 was to be considered and not the Tarun Nagar road touching the bridge. According to Mr Choudhury, the said Anil Nagar Bye Lane-1 abutting the plot is a dead end Road and therefore, by any stretch of any imagination, the width can be treated to be more than 8 meters, rather as per the mandate of law, the width of such road should be treated maximum to be 6.6 meter and the authority considered it to be 12.5 meter in front of the Protech.

XXIII. Section 21 of 2014 Bye-law (pre and post amended), which deals with the width of existing or proposed roads with street lines, prescribes that in case of dead-end Page No.# 27/33

roads up to 250 meters in length, the proposed width would be 6.6 meters and this is the provision, based on which Mr. K. N. Choudhury, learned senior counsel has advanced his arguments that Anil Nagar Bye lane 1 is to be treated as 6.6 meter, which abuts the project land. However, it is on record and admitted position that when Meghmallar applied for permission, a report was submitted by the GMDA that the length of the said road was more than 480 meters. XXIV. Record further reveals that the proposed building is connected by two roads one is the Anil Nagar bye lane 1, which has different widths ranging from 5.1 meters at the junction point, a maximum of 5.6 meters and a minimum of 5.1 meters and 12 meters in front of the project. Such Road width is available in the record as measured by the Revenue authority. The road in front of the project was widened to 12 meters by relinquishing lands for the purpose of permission. The fact also remains that the bridge over river Bharalu was constructed by Meghmallar as a condition precedent for the grant of permission, so that the Tarun Nagar Bye lane-2 is connected to the plot through the bridge. Such a decision though was assailed before this Court, however, this Court did not entertain such a plea inasmuch as, the aforesaid bridge was already constructed.

XXV. There is another dimension to it. The provision of Section 29 of the Bye-Law. Such provision deals with the manner of calculation of road width abutting the proposed Page No.# 28/33

building. It prescribes that when a building is situated on two or more streets of different widths, the building shall be deemed to be abutted, for the purpose of bye-law, the street, which has the greater width. In the case in hand, there is no dispute that the building is abutted by two roads and Nagar bye lane No.2 being greater in width, the same was considered which is also permissible under the extant bye laws .

XXVI. Now, coming to the constitution of the committee and the argument of Mr. Choudhury, learned senior counsel that the constitution of such committee has already been interfered with by this Court in Assam Real Estate Development & Anr Vs. State of Assam , [WP(C) 5320/2020], and therefore, permission granted by such a committee is void ab initio, this Court is of the opinion that such an argument has no basis. In the case of AREDA (supra), the challenge was to a Notification dated 19.10.2020, issued by Under Secretary to the Govt. of Assam, Guwahati Development Department, whereby a single window clearance committee was constituted with the departmental minister as its chairman for grant of Building permission. Such notification was interfered with by the Coordinate Bench in AREDA (supra), on the ground that the notification dated 19.10.2020 is contrary to the provision of the GMDA Act, 2010 as well as before and after its amendment, such single window clearance committee does Page No.# 29/33

not find any place in the GMDA Act., 2010. A perusal of the record discloses that the committee constituted by the chairman, GMDA, which recommended permission in favour of Meghmallar was constituted in a different context. Such a Committee was constituted only for scrutiny and recommendation of planning permission proposals when the plot area is more than 10 bighas. The order dated 03.09.2020 by which the aforesaid committee was constituted was neither under challenge in AREDA (supra), nor in this proceeding. Further such a committee was constituted not specifically for the grant of permission to Protech only, but it was a committee which is to scrutinise and recommend planning permission proposals when the plot area is more than 10 bighas. Therefore, this argument of Mr. K.N. Choudhury, learned senior counsel also do not find favour of this Court.

XXVII. Now coming into the allegation of bias/ colourable exercise of power/Influence of Respondent No.6 to favour his two sons, it is seen that it was initially pleaded that Respondent No.6 was a Minister of Guwahati Development Department at the time of the grant of permission and thus, he influenced the decision in favour of his two sons by flouting the norms. However, admittedly such a factual assertion was not correct. At the same time, the fact also remains that respondent No. 6 was the Chairman of GMDA which authority granted planning permission to Protech.

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XXVIII. It is well settled that no one shall be an arbitrator of his own cause in which he is interested. Such a principle mandates that the authority to which the case is assigned, should be unbiased and act without favouritism. In the case in hand, the bias alleged is a personal bias. Such Personal bias arises from the relationships between respondent No.6, being Chairman of GMDA i.e. the deciding authority and the parties (two sons), to whom allegedly the authority inclined favourably.

XXIX. In order to challenge an administrative action successfully on the grounds of personal bias, it is essential to prove that there is a reasonable suspicion of bias or a real likelihood of bias. The reasonable suspicion test examines mainly the outward appearance and the real likelihood test emphasizes the court's own evaluation of possibilities. XXX. To deal with such an argument, this court has gone through the records to have an evaluation of possibilities of bias and influence. It is on record that for the grant of permission for plots that are more than 10 Bighas, a committee was constituted and such Committee was to make verification with all such permissions and was not specific to the application filed by Protech. It is also on record that members of the committee visited the site and thereafter, proposal for grant of permission was submitted and accordingly, the permission was granted. From the record, this court has not found any material to create any Page No.# 31/33

reasonable suspicion of bias or real likelihood of bias, more particularly, for the reason that respondent No.6 was not part of any of the administrative decisions relating to the permission granted to Protech and it was the Secretary, GMDA, who dealt with such permission.

XXXI. The Hon'ble Apex court in Ramanand Prasad Singh vs. Union of India reported in AIR 1996 SCC 64, held that participation in the selection committee as a member, where his brother was a candidate but was not selected, is inconsequential. In the case in hand, respondent No.6 was not part of the decision-making process and at the same time, this court did not find any violation of Bye-Law 2020, while granting the building permission, so far the same relates to the road width, the plot area, the coverage area, and the resultant FAR. Therefore, the position of respondent No.6 as Chairman of GMDA shall be inconsequential in the aforesaid factual background, more particularly, when respondent No.6 was not part of any administrative decision granting permission to Protech. Even otherwise, Protech will have no available option to get any building permission until and unless, respondent No.6 remains either as Minister of Guwahati Development Department or remains as Chairman, GMDA, if the argument of Mr. Choudhury is accepted which may amount to violation of their right under article 19(1)(g) of the Constitution of India. Therefore, when an administrative decision was taken, where, respondent No.6 Page No.# 32/33

did not participate and this Court has not found any action to suggest that norms were flouted and excess FAR, beyond permissible limit, was granted, this Court is not inclined to accept such an argument of Mr. Choudhury, learned senior Counsel.

XXXII. Now, let this court deal with the argument of alternative remedy advanced by Mr. K.P. Pathak, learned senior counsel. The foundation of such argument is that the dispute revolves around the road width inasmuch as the urban authorities claim the road width to be 8.35 meters whereas, Meghmallar claims the road width to be 8 meters and therefore, such disputed questions of fact should also be relegated to be decided by the appellate authority and not by this court in exercise of its power of judicial review. XXXIII. The Hon'ble Apex Court in the case of the State of Orissa Vs. Binapani Devi reported in (1967) 2 SCR 625 categorically held that under Article 226 of the Constitution of India, the High Court is not precluded from entering upon a decision on question of fact raised in the petition. However, a caution was issued in the said judgment that where an enquiry into a complicated question of fact arises in a petition under Article 226 of the Constitution of India, the right of an aggrieved party to obtain relief/claim may not be determined and in appropriate cases, the High Court may decline to enter upon such an enquiry. When the dispute is serious in nature and cannot be satisfactorily decided without taking evidence, Page No.# 33/33

such dispute cannot be resolved by the High Court in the exercise of its power under Article 226 of the Constitution of India, however, where the disputed questions can be resolved by going through the original documents, undisputed materials, certified copies, incontrovertible documents, a citizen relief should not be non suited in a writ proceeding, merely on that ground. Be that as it may, in view of the determination made hereinabove, the issue raised by Mr. Pathak, learned senior counsel need not require any further consideration inasmuch as all the parties including respondent No.5, whom Mr. K. P. Pathak is representing have filed affidavit and deliberated on the merit of the case.

10. For the reasons recorded hereinabove, this court is of unhesitant opinion that the present writ petition lacks merit and accordingly, the same stands dismissed. Parties to bear their own costs. The court master is directed to hand over the records to Mr. S Bora, learned counsel by taking necessary receipt. Such receipt be kept on record.

11. However, while parting with the record, it is made clear that this Court has dealt only with the validity of the permission so far the same relates to Width of the Road and resultant grant of FAR and not with the actual execution/construction of the building or any other aspect of such permission granted.

JUDGE

Comparing Assistant