For vs Mr. Tytan Debbarma
2023 Latest Caselaw 309 Tri

                                   Page 1 of 8




                       HIGH COURT OF TRIPURA
                             AGARTALA
                              W.A. No.105/2022

For Appellant(s)                  : Mr. Somik Deb, Sr. Advocate,
                                    Mr. Tytan Debbarma, Advocate.
For Respondent(s)                 : Mr. P.K. Biswas, Sr. Advocate,

Mr. Arijit Bhowmik, Advocate, Mr. P. Majumder, Advocate, Ms. S. Debbarma, Advocate.

HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH HON'BLE MR. JUSTICE ARINDAM LODH

Order 18/04/2023

Considerable arguments have been advanced by the learned

counsel for the appellants, private respondent and the Municipal Corporation

taking us to the history of the litigation to its present stage. The report of the

learned Advocate Commissioner has been served upon the learned counsel

for the parties in terms of the order dated 15.02.2023.

The present appeal by the petitioner is against the judgment

dated 30.06.2022 whereby the learned Single Judge had dismissed the writ

petition on the ground of lack of locus standi of the petitioner/appellant. A

report of the present situation of deviations in the building of the private

respondent which were non-compoundable was brought on record in the writ

petition bearing letter No.171(A) dated 07.04.2022. Learned Single Judge

vide impugned judgment had upon consideration of rival submissions of the

parties and having heard the Municipal Commissioner who was present in

Court directed the Municipal Commissioner to look into the matter in its

entirety. An observation was made that the building had been constructed

after obtaining approval from the Agartala Municipal Corporation in

different periods in the years 1983 and thereafter and there has been a

change in the Municipal Rules periodically. The Commissioner was also

asked to consider all these aspects and analyze the permissible deviations.

He would also suggest the unofficial respondent regarding removing the

unauthorized construction by causing minimum damage to the property and

consider compounding of deviations as per law.

As per the private respondent, it had demolished certain part of

the deviations in the building earlier on 21.01.2020.

Be it noted here that initially the Case No.7(88)-UDD of 2016

instituted against the private respondent was decided by the Assistant

Municipal Commissioner and affirmed in appeal vide order dated

22.02.2018 by the Tribunal (Annexure-1 to the memo of appeal). The

challenge thereto by the private respondent in WP(C) No.371 of 2018 was

disposed of with certain directions upon the Assistant Commissioner,

Agartala Municipal Corporation to carry out an inspection of the subject

matter of the lis, i.e. house of the writ petitioner/private respondent herein to

ascertain the deviations from the original sanctioned municipal plan. The

private respondent/petitioner therein had undertaken to demolish all

constructions existing on the spot as found out in excess of the sanctioned

municipal plan at his own cost within a stipulated period. That undertaking

was taken on record. Thereafter, the private respondent approached this

Court in WP(C) No.196 of 2019 (Annexure-4 to the memo of appeal) which

got disposed of with the following observations and directions:

"[13] Having regard to the submission made by the learned counsel for the parties, this court is of the view that the building that was constructed in the year 1983 as per the approved plan and during its construction, no objection was raised from any quarters, should not be brought under the demolition exercise. However, so far the building that has been constructed in terms of the plan that was approved under No.HC/5024/16/AMC/4994-28 dated 30.04.2016 and the other approved plan (three storied) vide No.AMC/ EZ/ 21/ 3605/172810 dated 28.12.2017 and deviation from the plan has been demarcated the said exercise, the deviated part be demolished by the petitioner within a period of 15 (fifteen) days at his own expenses. For the purpose of demolition, Agartala Municipal Corporation shall take aid of the physical inspection team which shall identify that part of the building which has been constructed in terms of the said building plan dated 30.04.2016. The Municipal Corporation shall demarcate such parts of the building, which are constructed in deviation of the approved plan for purpose of demolition, if not already demolished by the petitioner, within a period of 15 (fifteen) days from the day of receipt of this order. The demolition by

the petitioner shall be completed within 15 (fifteen) days from the date of the said demarcation [the refurbished new report]. The petitioner shall receive a copy of the refurbished report in terms of this order.

[14] Agartala Municipal Corporation and the respondents No.2 and 3 are therefore directed to furnish the refurbished report of deviation to the petitioner within a period of 15 (fifteen) days from the day of receipt of this order. If the petitioner failed, for any reason, to demolish the unauthorized part, the respondents No.1, 2 and 3 shall execute the demolition at the expenses of the petitioner. The expenses may be recovered as the due to the Municipal Corporation. Such demolition will not purge the petitioner from the contempt action."

The private respondent again preferred WP(C) No.69 of 2020

which was dismissed as withdrawn vide order dated 22.02.2021. The

petitioner herein thereafter made a representation before the Agartala

Municipal Corporation on 18.09.2021 for implementation of the judgment

dated 20.06.2019 and 22.02.2021 in WP(C) No.196 of 2019 and WP(C)

No.69 of 2020 respectively and thereafter approached this Court by filing

Cont.Case(Civil) No.104 of 2021 for execution of the judgment dated

20.06.2019. The same was, however, dismissed as not pressed with liberty to

the petitioner to initiate appropriate action at law for execution of the said

judgment and order. Thereafter, the instant writ petition has been preferred

by the petitioner primarily for execution of the judgment passed earlier.

Learned counsel for the private respondent has referred to the

affidavit filed by the Municipal Corporation in WP(C) No.69 of 2020, in

particular paragraphs-7 and 8 in order to submit that the inspection that was

carried out in terms of this Court's orders dated 27.11.2018 and 20.06.2019

actually got the second floor building inspected inadvertently.

These events in the journey of this litigation are being noticed

hereinabove only to indicate that the stand of the Municipal Corporation has

also changed after the original order of the Assistant Municipal

Commissioner dated 03.09.2016 as affirmed in appeal by the Municipal

Appellate Tribunal. Taking this change in stand from time to time, it appears

that the learned Single Judge had directed the learned Municipal

Commissioner to consider the matter in entirety. By the previous order dated

09.12.2022 taking note of the nature of the dispute, a learned Advocate

Commissioner was appointed to inspect the disputed site and examine all the

records including the sanctioned plan of the private respondent and also to

verify up to what extent the building is extended in breach of the sanctioned

plan. He was also requested to examine as to how such extension affects the

free passage of air and lights to the building of the petitioner. The report has

been submitted and copies thereof have been served upon learned counsel

for the parties pursuant to the order dated 15.02.2023. The report is extracted

hereunder:

"In compliance of the order dated 09.12.2022 passed in W.A. No.105 of 2022 of the Hon'ble High Court of Tripura, I visited the disputed site on 24.12.2022 at about 11 hours, and I examined all the papers and sanctioned plan of the Private Respondent. I carefully inspect the building of Private respondent and the houses of the appellants. I took all the measurements in presence of the both the Appellants and Private Respondents. Photography also been taken by the profession photographer viz Sri Kamal Mitra from different angles of the disputed building as well as the houses of the Appellants. After taking measurement I prepared hand sketch map of the site in presence of both the parties. The Private Respondent signed in the said map but both the Appellants refused to put their signature as I have not worked according to their choice/directions and for that reason they denied to pay the fees as fixed by the Hon'ble Court. The details report is mentioned below:-

1. The difference between the houses of Appellant No.1 to the Private Respondent is 13′11′′ (Thirteen feet and eleven inches) boundary wall to boundary wall.

2. There is a 13′11′′ (Thirteen feet and eleven inches) wide road between the houses of the Appellant No.1, Sri Subrata Saha and the private Respondent. The said road is extended up to the main road in East-West direction. In the approach of the said road the house of the Appellant No.2 i.e. Sri Sankar Saha is situated.

3. That the Distance between the house of the Appellant No.2 i.e. Sri Sankar Saha and Private Respondent is 133′06′′ (one thirty three feet and six inches).

4. The houses of both the Appellants are no way connected within the boundary of the Private Respondent i.e. Sri Sambhunatha Saha. Houses of the Appellants are far away from the house of the Private Respondent.

5. That, there is a gap between disputed building of the private Respondent and his boundary is 3′06′′ (Three feet and Six inches), on the other hand the gap between the go down of Appellant No.1 i.e. Sri Subrata Saha and his boundary wall is 3′03′′ (Three feet and three inches).

6. That, the distance between dwelling house of Appellant No.1 i.e. Sri Subrata Saha and his boundary wall is 25′10′′ (Twenty five feet and ten inches).

7. That, the distance between the disputed building of the private Respondent viz Sri Sambhunath Saha and the house of the Appellant No.1 is 44′03′′ (Forty four feet and three inches).

8. That, there is no gap between the building of Appellant No.2 and his boundary in the Northern side.

According to Appellants, extension has been made in back side of the building of the Private Respondent. If it so, no way Appellants would be affected, because the back side of the disputed building is situated in the southern side of disputed building, it would more clear from my hand sketch map. I beg to say that only expert can say how far deviation has been made or not."

The sketch map in pencil in the handwriting of the learned

Advocate Commissioner is enclosed with the report.

Learned counsel for the petitioner has not disputed that there

exists a road of width of 13 feet 11 inches between the house of the private

respondent and the petitioner. At this stage, though we may not like to

observe as to the role of the petitioner in the present proceedings but taking

into consideration the last inspection report of the Assistant Municipal

Commissioner dated 07.04.2022 and the report of the learned Advocate

Commissioner dated 04.01.2023, we are of the view that the statutory

authority, i.e. the Municipal Corporation is required to come forth with a

clear stand on this issue as per their own inspection carried out earlier and

the by-laws governing the sanction of building plan under the Agartala

Municipal Corporation. The respondent-Corporation has to make it clear as

to how they intend to proceed in the matter. The statutory mandate upon the

Municipal Corporation to ensure that buildings are constructed as per the

sanctioned plan and no deviations beyond compoundable limits are

permitted to continue are required to be performed by them. In the

background of the conspectus of facts and circumstances taken note

hereinabove, learned counsel for the Corporation prays for and is allowed

10(ten) days time to come with a clear stand on this issue so that the matter

can be disposed of on the next date.

Let the case be listed on 02.05.2023.

(ARINDAM LODH), J                      (APARESH KUMAR SINGH), CJ




Pulak