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Judgment
Heard Mr. A. Phukan, learned counsel appearing for the petitioner and Mr. BD Konwar, learned senior counsel for respondents no. 1, 2 and 3. Also
heard Mr. N. Goswami, learned counsel for the respondent no. 4 as well as Mr. DJ Kapil, learned counsel for authorities under the Hon’ble
Assam Human Rights Commission.
It is stated that as required by the order of 19.06.2020, notices to respondents no. 6 and 7 are served, but none appears.
Considering the nature of the grievances raised, the earlier order of this Court dated 06.09.2016 as well as the aspect that the proceeding before the
Hon’ble Assam Human Rights Commission has already been brought to its end, we propose to give a final consideration to this writ petition in the
absence of the respondents no. 6 and 7 in as much as, no prejudice would be caused to them even in their absence.
The writ petitioner, Brahmaputra Business Private Limited represented by its Director being the petitioner no. 2 are engaged in the activities of
constructions of a 7(seven) storied RCC residential building on a plot of land covered by the Dag No. 192, 262, 265, 265, 250 of Patta No. 1353, 1354,
67 of Ward No. 52 VIP Road, Village Hengrabari, Mouza Beltola, Guwahati.
According to the petitioners, a no objection certificate (NOC) had been issued in their favour by the respondent no. 2 for erecting the 7 (seven)
storied building along with its boundary wall over the land indicated above.
In the circumstances, the petitioners were issued notice dated 05.07.2019 by the Commissioner, Guwahati Municipal Corporation whereby they
were asked to stop the construction of their LGF+UFG+7th floor building which they were constructing.
The petitioners were also aggrieved by another order dated 07.05.2019 of the Hon’ble Assam Human Rights Commission which was passed at
the instance of the respondent no. 7 being the Barbari Unnayan Samiti.
By the said order, notice was issued to the Deputy Commissioner, Kamrup(M) to make an enquiry on the allegation made by the respondent no. 7
that the proposed building being constructed by the petitioner would become a security hazard to the local inhabitants and it would also aggravate the
water problems to be faced by the residents.
By the order dated 06.09.2019 in the writ petition 6324/2019, this Court arrived at its conclusion which is extracted below:
“Mr. Choudhury, learned senior counsel, submits that his client has commenced the construction work after obtaining due permission from the
authorities and therefore, there was no justifiable ground for the respondent No. 3 to issue the impugned order dated 05.07.2019. The learned senior
counsel further submits that the impugned order has been issued at the instance of third party having vested interest and without serving any show
cause notice upon the petitioner.
Mr. Borah, learned Standing Counsel, GMC, submits on instructions that no notice was served upon the petitioner before issuing the order dated
05.07.2019. If that be so, this Court is of the prima-facie view that the impugned order dated 05.07.2019 is unsustainable in the eye of law. However,
since there are respondents in this case, who are yet to be served, hence, the writ petition cannot be disposed of at the stage of motion hearing.â€
A reading of the order dated 06.09.2019 as extracted above makes it discernable that the notice dated 05.07.2019 of the Commissioner, Guwahati
Municipal Corporation requiring the petitioner to stop the constructions, was issued without serving any show-cause notice.
In the circumstance, the Court arrived at its prima-facie view that the order dated 05.07.2019 would be unsustainable in the eye of law, but at that
stage as the respondents were not served, therefore, writ petition was not finally disposed of.
According to the learned counsel for the respondents, the aspect that no notice was served on the petitioners before issuing the order dated
05.07.2019 requiring them to stop the construction is factually correct. Accordingly, we are in agreement with the observation of this Court in its order
dated 06.09.2019 that the order dated 05.07.2019 was issued in violation of the principles of natural justice.
As regards the order dated 07.05.2019 of the Hon’ble Assam Human Rights Commission in AHRC Case No. 2584/2019-20(9)/3, which has
also been assailed in this writ petition, Mr. DJ Kapil, learned counsel for the Hon’ble Commission has made a statement that as per the order
dated 25.11.2019, the AHRC Case No. 2584/2019-2020(9) has been closed. As the proceeding before the Hon’ble Commission has itself been
closed, we are of the view that there is no requirement of any adjudication of an interlocutory order dated 07.05.2019 passed in the said proceeding.
Accordingly, we are of the view this writ petition does not require any further adjudication and accordingly, the same warrants a closure.
However, we make it clear that as the order dated 05.07.2019 requiring a stoppage of construction by the petitioner had been interfered on a technical
ground of there being a violation of principles of natural justice, we provide that liberty remains with the authorities of the Guwahati Municipal
Corporation to proceed against the petitioner, if so advised, by following due procedure of law.
Writ petition stands closed as indicated above.