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Judgment
A. Hazarika, J.—Heard Mr. N. Dutta, learned Sr. Counsel assisted by Mr. S.S. Dey, advocate appearing for the petitioner, Also heard Mr.
S. Chamaria, learned Standing Counsel appearing for the respondents Guwahati Municipal Corporation.
The writ petitioner in the instant petition is a company incorporated under the Companies Act, 1956. By this writ petition, the petitioner has
challenged the legality and validity of the order/decision dated 19.9.06 passed by the Commissioner, Guwahati Municipal Corporation,
Respondent No. 2, disposing of the representations dated 19.6.06 and 17.8.06 submitted by the writ petitioner for granting No Objection
Certificate (NOC for short) for 5th floor constructed by it.
The petitioner company with the intention of starting a project to construct a multistoried building in a plot of and measuring 8.03 are covered by
Dag No. 2814 (new), 170 (old) of K.P. Patta No. 42 (old), 1218 (new) in village Jatia of Guwahati town, submitted the building''s structural
design and drawings to the Guwahati Municipal Corporation (GMC for short), seeking permission to build 1st to 5th floor accompanied by a
certificate issued by the authorized/approved consultant architect. But permission was granted up to 4th floor only. On appeal, the Standing
Appeals Committee of GMC approved the construction of 5th floor vide order dated 7.9.05, after apparently hearing the Associate Planner of
GMC, who represented the Commissioner, GMC. The decision of the Appeals Committee was based on the fact that the width of the road
abutting the proposed building was 24 feet as against the required 25 feet, i.e. a shortage of just one foot, which was too insignificant to deprive the
petitioner of constructing the 5th floor.
Armed with the aforesaid order dated 7.9.05, the petitioner proceeded to construct the 5th floor, in the process investing Rs. 60,00,000/-
(Rupees sixty lakhs). On 9.11.05, when the construction was almost finished, the Associate Planner of GMC issued a notice asking the petitioner
to stop the construction of their G+5 building and further to produce the NOC and the Approval Building Plan. To this, the petitioner replied by
submitting that the Standing Appeals Committee had approved the construction up to 5th floor and that construction had been carried out strictly
as per the approved plan. On 15.6.06, the Associate Planner, GMC issued another notice repeating the same direction as contained in the
previous notice dated 9.11.05. However, in the second notice dated 15.6.06, it was further observed that,
NB though the SAC approved, the proposal (5th floor), final NOC is yet to be issued as per approval of the Technical Committee, hence you are
directed to stop the construction.
The petitioner again submitted a reply to this notice on 19.6.06, which was substantially same as to their earlier reply. But in this reply it was
further stated that after the order of the Standing Appeals Committee, a seal was inserted in the body of the original NOC dated 8.11.04 marking
up to 5th floor only"".
With no final order forthcoming from the GMC, the petitioner had to move this Court vide WP(C) No. 2971/06 praying for appropriate relief.
This court vide order dated 26.7.06 inter alia directed the GMC to consider and dispose of the reply filed by the writ petitioner pursuant to the
stop construction notice within a period of 10 days. It was also directed that further action that may be taken by the Corporation shall depend
upon the final order to be passed by the Corporation on such reply filed by the writ petitioner, until such proceeding was finally decided by the
GMC, the petitioner should not make any further construction of the building in question. Subsequently, the petitioner made another representation
to the Commissioner, GMC on 17.8.06 inter alia repeating his defence against the stop construction notices. The Commissioner, GMC, ultimately
disposed of the matter on 19.9.06 inter alia declining to issue NOC for construction of the 5th floor and challenging the legality and validity of this
order the petitioner has approached this Court by filing the instant writ petition. A
On perusal of the writ petition it has been noticed that the petitioner has assailed the order dated 19.9.06 mainly on the following grounds:
i) That the order dated 7.9.05 passed by the Standing Appeals Committee has statutory force behind it as the committee itself is a creature of the
statute, i.e. the GMC Act, 1971 and the appeal preferred by the petitioner before this committee was in terms of Section 438 of the said Act.
ii) That despite there being a provision of further appeal against the order of Standing Appeals Committee before the Corporation to be filed within
60 days from the date of decision of the appeals committee, no such appeal was preferred by the Commissioner. Therefore, the order of Standing
Appeals Committee granting permission to construct the 5th floor has become final.
The petitioner in an endeavour to show that the order made by the Standing Appeals Committee is legal qua the Building Bye-laws of the GMC
has stated in paragraph 24 as follows:
That in the impugned letter dated 19.09.2006 by wrongly construing the provisions of Building Bye-laws of GMC, it is held that as per Building
Bye-laws height of the building is non-compoundable. Whereas, as per Appendix-III of the Building Bye-laws, 1.5% of the total height of a
building is compoundable. In the instant case, the petitioner applied for permission up to G+5 floors i.e. 15 Meter/49.21 feet. Based on the road
width, maximum height of the building can be 14.63 Mater/48 feet. In terms of Appendix-III of the Bye-laws, height of the building is
compoundable by 22 Meter/75 feet. The Standing Appeals Committee considered/approved construction of the fifth floor by allowing maximum
height of the building up to 15 Meter/49.21 feet. As such Standing Appeals Committee allowed additional height of .37 Meter/1.21 feet which is
only .14 Meter/.46 feet/5 inch beyond the compoundable limit. From the above it is apparent that even if there is any dispute regarding permissible
limit of the maximum height of the building is concerned, it is only of .14 Meter/.46 feet/5 inches, which is negligible. As such it is most respectfully
submitted that for a height of only .14 Meter/5 inches, the construction of the entire building in question including the fifth floor should not be
stopped. Moreover in view of the approval granted by the Standing Committee, the decisions taken by the respondent No. 2 contained in the
impugned letter dated 19.09.2006 is unfair, arbitrary, illegal and malafide and the same are liable to be set aside and quashed by this Hon''ble
Court.
It is in this context that this Court has to decide if the decision of the Commissioner, GMC dated 19.9.06 needs to be interfered with.
The provisions contained in the Building Bye-laws of GMC that are relevant to the present case are quoted hereinunder--
2(9) ""building"" means any construction for whatsoever purpose and of whatsoever materials construction and every part thereof, whether used as
human habitation or not and includes plinth walls, chimney drainage work, fixed platforms, verandah, balcony, cornice or projection, or part of a
building or anything affixed thereto or any walls, earth bank, fence or other construction enclosing or delimiting or intended to enclose or delimit
any land or space.
2(11) ""building height"" means the vertical distance measured in the case of flat roofs from the average level of the center line of the adjoining street
to the highest point of the building adjacent to the street wall, and in the case of pitched roofs, up to the point where the external surface of the
outer wall intersects the finished surface of the slopping roof, and in the case of gallerys facing the road the mid-point between the caves level and
the ridge. The architectural features serving no other function except that of decoration shall be excluded for the purpose of taking heights. If the
building does not about the street the height shall be measured above the average level of the ground and contiguous to the building.
2(52) ""road"" means and includes any highway, street, lane, pathway, alley, passageway, carriageway, footway, square, bridge, whether private or
public, whether thoroughfare or not, whether existing or proposed in any scheme, culverts, sidewalks and traffic islands.
Maximum height of the building and additional requirement:- Building shall not exceed 3 storey or a height of 11.5 m. without the following
additional provisions for open space all around the building except, in cases where otherwise specified.
i)...
ii) building shall not exceed 1.5 times the width of the road plus front open space subject to a maximum of 2 times the road width;
Building abutting on two streets:- If a building is situated on two or more streets of different width, the building shall be deemed for the purpose
of these bye-laws to face the streets which has the greater width and the height will be as per bye-law.
The learned Counsel appearing for GMC has placed before this Court a copy of the original site plan of the building as approved by the
GMC. Associate Planner of the GMC was personally present in the court during the process of hearing on 5.6.07 and assisted the court for
understanding the site plan. The site plan reveals that the width of the portion of the road in front of the entrance of the building is 11.76 meters. It
was contended on behalf of the Corporation that the width of 11.76 meters consists of an area, which is a junction of streets abutting the building
and hence, cannot be taken into consideration while calculating permissible height of the building in terms of Bye-law 37(ii). But as per Bye-law
2(52), road also includes in its definition a ""square"" which this area is undoubtedly is, because the portion of road in front of the building is a
junction of three streets forming a square. Again the front open space of the building is shown as 5.9 meters facing the said road.
Thus here the ""width of the road is 11.76 meters and the front open space is 5.9 meters. Their sum being 17.66 meters qua Bye-law 37(ii).
Hence, the height of the building which admittedly stands at 15 meters is clearly within the limitations of permissible building height prescribed under
Bye-law 37(ii) inasmuch as, Bye-law 37(ii) would allow for 1.5. times of 17.66 meters but in this case, the height of the building is only 50 feet.
Thus, even Bye-law 38 entitling the petitioner to the advantage of greater width of the abutting roads need not to be referred to.
Learned Counsel appearing for the Corporation strenuously urged that at any rate the Commissioner, GMC had not yet granted NOC in terms
of the order of the Standing Appeals Committee and hence, construction of the petitioner is unauthorized. There is no force in this submission as
the Commissioner did not prefer appeal within 60 days as required under the law and hence, the order of the Standing Appeals Committee
attained its finality. In addition, on scrutiny, we have also found that the permission granted by the Standing Appeals Committee is within the
parameter of the Building Bye-laws as discussed above. The width of the road in the case, in hand, is 11.76 meters (38.58 feet) and not 24 feet as
clearly demonstrated by the site plan approved by the GMC itself. That being the position, the construction of 5th floor up to 50 feet cannot be
said to be beyond permissible limit.
In view of the discussion and observation made above, the writ petition is allowed. However, in the facts and circumstances of the case, we
make no order.