J.M. Thangkhiew and Others Vs The State of Meghalaya and Others

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Judgment

629 paragraphs · 30,834 words

T. Nandakumar Singh, J—Shillong Town is on the slope of the hill. More than 90% of the buildings are constructed on the adverse terrain i.e. higher hill slope and buildings are highly unsaved in Shillong agglomeration area. Landslide is the common feature in Shillong Town. Major portion of the hill in Shillong are loose soil. Shillong Town is totally different from Guwahati city located at the plain area. There are some multi-storied buildings in the plain areas of Guwahati city; even then the Gauhati High Court in a number of cases had directed to demolish the additional floors above the permitted floor. The judgments of the Gauhati High Court for demolition of the additional floors are being discussed in the later part of this judgment.

Heard Mr. K Paul, learned counsel for the petitioners, Mr. ND Chullai, learned Sr. GA assisted by Mr. S Sen Gupta, learned GA appearing for the respondents No. 1, 2 & 4, Mr. SP Mahanta, learned senior counsel assisted by Ms. S. Pde, learned counsel appearing for the respondent No. 3, Mr. S. Muraka, learned counsel for the respondents No. 5 & 12, Mr. HS Thangkhiew, learned senior counsel assisted by Mr. N. Mozika, learned counsel for the respondents No. 6, 10, 14, 15, 17, 18 & 22, Mr. KP Bhattacharjee, learned counsel for the respondents No. 7, 8, 11 & 19, Mr. BK Das, learned counsel for the respondent No. 9, Mr. L. Lyngdoh, learned counsel for the respondent No. 24, Mr. B. Bhattacharjee, learned counsel for the respondents No. 23 & 26 and Mr. VGK Kynta, senior counsel assisted by Mr. KK Khongjoh, Adv for respt. No. 25 and 28.

The State of Meghalaya has been placed at Zone-5 of the seismic activity. In metrological parlance, Zone-5 area would be an area in which the highest level of seismic activity is expected and inevitable. Zone-5 areas are likely to experience earthquakes which can be as high as 8/9 on the Richter scale and above. We may remember the catastrophic result of the recent earthquake at Kathmandu in the month of April/May, 2015. Nepal falls in Zone-5 like the State of Meghalaya. All the places located in Zone-5 carry the tag of a Magnitude 8 earthquake. So the 7.9 Magnitude earthquake that struck Nepal at Lamjung, 77 Km to the northwest of Kathmandu on April 25 only validated the seismic zoning. It will be seen that there are five disconnected islands of Zone-5, occurring on the base of Zone-4, from Kashmir to the northeastern states, all of which constitute the largest region of Zone-5. In the last earthquake in Nepal which located in Zone-5, several thousand persons were killed and several thousands buildings collapsed. The magnitude of the earthquake was 7.9 on Richter scale. It is clear from the last earthquake in Nepal which falls in seismic Zone-5 shows that the earthquake of 7.9. magnitude struck Nepal; so also the last earthquake in the year 1897 in Meghalaya which fall in seismic Zone-5 like Nepal.

In 1897, there was an earthquake measuring 8.7 on the Richter scale which shook Shillong resulting in about 1542 (one thousand five hundred forty two) deaths. The situation then was one in which Shillong was not the urban jungle that it is now. The Govt. of Meghalaya as well as the Meghalaya Urban Development Authority (for short ''MUDA''), Shillong the competent authority for granting permission for construction of building admitted that State of Meghalaya falls in seismic Zone-5. Byelaw 2.45 of the Meghalaya Building Byelaws, 2011 reads as follows:--

"2.45 Natural Hazard Prone Areas'' - Means areas likely to have moderate to high intensity of earthquake or cyclonic storm, or significant flood flow or inundation or land slides/mud flows/avalanches, or one or more of these hazards.

Note: Moderate to very high damage risk zones of earthquakes are given as in Seismic Zones III, IV and V specified in IS:1893; moderate to very high damage risk zones of cyclones are those areas along the sea coast of India prone to having wind velocities of 39 m/s or more as specified in IS:875(Part 3;) and flood prone areas in river plains (Unprotected and protected) are indicated in the Flood Atlas of India prepared by the Central Water Commission, besides, other areas can be flooded under conditions of heavy intensity rains, inundation in depressions, back flow in drains, inadequate drainage, etc. as to be identified through local surveys in the development plan of the area and landslide prone areas as to be identified by State Government."

In such situation, one can imagine the catastrophic result of the multi-storied buildings constructed on the hill slope of soft soil in Shillong in the earthquake of magnitude of 8.7 i.e. earthquake measuring 8.7 of on the Richter scale like the one in 1897 resulting to deaths of about 1542 (one thousand five hundred forty two). The four practicing Advocates of the High Court of Meghalaya and other subordinate courts filed the present writ petition in the nature of PIL (i) for a direction to the respondents No. 1-4 to cancel the building permission/clearance issued in respect of the multi-storied RCC buildings in and around Shillong city; (ii) for a direction to the respondents No. 1-4 to cause an enquiry and submit a detailed report for the judicial satisfaction of this Court that all the buildings constructed/erected in and around Shillong city have received due permission/inspection and had been issued clearances and all constructions made conform to the specifications, technical and otherwise to "the Meghalaya Building Byelaws, 2011" and; (iii) to pass appropriate order regulating/monitoring the construction of multi-storied RCC buildings situated in and around Shillong city and also appropriate order/direction. It is the case of the writ petitioners that the petitioners are practicing Advocates permanently based at Shillong and practicing in the High Court of Meghalaya and other subordinate courts. The petitioners have no personal interest (vested or otherwise) in filing the present Public Interest Litigation (for short ''PIL'') save and except the best interest of the public in particular and the society in general. A large number of high rise buildings/Reinforced Concrete Constructed (hereinafter referred to RCC for brevity)/multi-storied buildings/sky scraper buildings have suddenly emerged in and around the vicinity of Shillong city which is the capital of Meghalaya. The State of Meghalaya has been placed at Zone-5 of the seismic activity. The seismic activity of Zone-5 areas are likely to experience earthquake which can be as high as 8/9 on the Richter scale and above.

The earthquake of magnitude of 8.7 like the one in 1897 may happen at any time. In case it so happens, the number of deaths will be several thousands inasmuch as the multi-storied buildings are all constructed at the hill slope or in the gradient of the hill slope of loose soil. The emergence of multi-storied buildings within and around Shillong had increased the risk of earthquakes and it is unimaginable as to how respondents No. 1-3 are still issuing building permissions/clearance certificates for the construction of high rise buildings. The construction/erection of high rise buildings/RCC/multi-storied buildings/sky scraper buildings in and around Shillong city is controlled by the Meghalaya Building Byelaws, 2011, and the MUDA i.e. respondent No. 3 is to ensure that the provisions contained in the Byelaws, 2011 are upheld and adhered to in granting permissions for construction of buildings. Of late the rapid emergence of high rise buildings/RCC/multi-storied buildings/sky scraper buildings has lent fervor to the petitioner that due procedures and norms are not being followed by the concerned authority in respect of the issuance of clearance/permission including inspection etc. with respect to the erection/construction of high rise buildings/RCC/multi-storied buildings/sky scrapers buildings thereby creating an imminent risk of damage including human lives in the event of a tremor of substantial magnitude in and around Shillong city. Moreover, Shillong city is a hill station and most of the houses built in the past were Assam Type Houses; those houses even though they are susceptible to tremors traversing through the area are less likely to cause catastrophic damage in the event of an earthquake arising. It is not the case of the petitioners that there should be construction of only Assam Type House in Shillong city. Of late, Shillong city being swamped by high rise buildings/RCC/multi-storied buildings/sky scraper buildings erected even on an area which is a gradient is posing an inherent risk to the lives of the inhabitants as well as the surrounding neighbours of such building are in imminent danger of death in the unfortunate occurrence of an earthquake.

The petitioners further submit that the threat of inevitable earthquakes (whether mild/strong) would lead to the collapse giving way of weak and structurally unstable buildings that are in plenty in and around Shillong area thereby leading to huge loss. Improper, irregular and haphazard manner by which permission(s)/clearance(s) is/are issued in a mechanical way for the construction of multi-storied buildings extended beyond 3 (three) storeys in and around the hilly Shillong city/town-ship warrants a serious look into the matter and an immediate intervention of this Court for preventing the impending dangers that they bring forth. In the best interest of general public at large, the petitioners had come before this Court for a timely intervention in this matter before any unfortunate event occurs. Many individuals are apprehensive of the upcoming urban jungle that Shillong city is turning into but none till date had done anything to question it. The petitioners out of a sense of duty and moral obligation have garnered the strength to question the apparent lapses and laxities on the part of the respondent authorities. An order from this Court stopping or curbing the mindless and mechanical construction/erection of the multi-storied buildings would potentially reduce the risk of loss of lives in the unfortunate event of any natural disaster. To provide for the development of the towns and country sides of the State of Meghalaya on sound planning principles with the object of securing proper sanitary conditions, to conserve and promote the public health, safety and general welfare of the peoples living therein, the Meghalaya Town and Country Planning Act, 1973 was enacted and it extends to the whole of Meghalaya excluding the Autonomous District Council.

The respondent No. 3 i.e. MUDA, Shillong is the authority as defined under Section 2(1) of the Meghalaya Town and Country Planning Act, 1973 (for short'' the said Planning Act, 1973'') and has the power to make byelaws under Section 74 of the said Planning Act, 1973. Section 74 of the said Planning Act, 1973 reads as follows:--

"74. Power of the Authority to make bye-laws. (1) The Authority shall have power to make bye-laws in respect of the matters enumerated under this section not inconsistent with the rules made by the State Government:

(i) and sub-division and lay out of public street;

(ii) width for different classes of public streets according to the nature of traffic to be carried thereon;

(iii) street lanes and setting back of buildings from the regular line of the street;

(iv) zoning regulations prescribing the type or description of building which may or may not be, and the purpose for which a building may or may not be erected, in any prescribed area or areas;

(v) regulation and display of advertisement in the interest or amenity, aesthetic, or public safety;

(vi) regulations in any manner not specifically provided for in this Act, the erection of any enclosure, wall, fence, tent or the structure on any land within the limits of the Authority;

(vii) a time and place and transaction of business of the meeting of the Authority.

(2) The power to make bye-laws under this Act shall be subject to the condition of previous publication.

(3) No such bye-laws shall come into force until it is approved by the State Government.

(4) The State Government may cancel their confirmation of any such bye-law and thereupon the bye-law shall cease to have effect.

NOTES

Clause (vi) was inserted vide Assam Act No. XXXII of 1962 published in the Assam Gazette, dated the 26th November, 1962."

8.1. In exercise of the power conferred under Section 74 of the said Planning Act, 1973, the respondent No. 3 with the approval of the State Govt. made the Byelaws called "the Meghalaya Building Byelaws, 2011" (for short "Byelaws") which was notified vide Meghalaya Gazette Part-IIA dated July 21, 2011. Byelaws which will be required to refer in deciding the present writ petition are reproduced hereunder:--

"1.1. Short title:-- These byelaws may be called the Meghalaya Building Byelaws, 2011.

2.7 ''Basement or Cellar'':-- The lower storey of a building which is minimum 2/3rd of the floor height below the finished ground level.

***** ***** *****

f. Parking places and garages;

***** ***** *****

h. The basement shall not be used for living purposes. However, use of a basement floor for living purpose or functional use will be permitted provided the requirement of proper lighting, ventilation and environmental conditions as prescribed are complied.

i. The basement shall have the following requirements:

(i) Every basement shall be in every part at least 2.4 m in height from the floor to the underside of the roof slab or ceiling.

***** ***** *****

(iv) Adequate arrangement shall be made such that surface drainage does not enter the basement.

2.11 ''Coverage'':-- Means the quotient obtained in the terms of percentage by dividing the plinth areas of Ground floor by plot area, i.e.

Coverage: Plinth area of the Ground floor x 100/Plot area

2.18 ''Floor'' Area Ratio'' (F.A.R.):-- The quotient obtained by dividing the total covered area (plinth area) on all floors by the area of a plot i.e.

F.A.R. - Total covered area of all floors/Plot area

2.19 ''Ground Level'':-- Mean the finished surface after formation cutting of the site from where erection of the building starts.

2.22 HEIGHT OF FLOORS:--Minimum height of floors in building at any point shall be 3.0 Mts.

Provided that in case of folded roof the minimum height of 3.0 Mts. shall be measured from the lowest point of the fold.

Provided that in case of gabled or slopping roof the minimum height below the lowest part of roof, shall not be less than 2.2 Mts. and an average of the rooms shall not be less than the minimum prescribed here above.

Provided further that in case of trussed-roof, the minimum height shall be measured from the pavement to bottom of the tie beam.

Provided that for verandah, Bathroom, W.C., passages, puja room, store room, stair cabin, minimum height shall be 2.20 mts.

2.28 "Multi-storyed Building or High Rise Building" - A building above 4 storeys, and/or a building exceeding 15 meters or more in height. However, chimneys, cooling towers, boiler rooms/lift machine rooms, cold storage and other non working areas in case of industrial buildings and water tanks, and architectural features in respect of other buildings may be permitted as a non high rise building. Buildings less than 15 meters including stilt/basement/parking floors stand excluded from the definition of high rise buildings.

2.45 Natural Hazard Prone Areas'' - Means areas likely to have moderate to high intensity of earthquake or cyclonic storm, or significant flood flow or inundation or land slides/mud flows/avalanches, or one or more of these hazards.

2.47 ''Special Building'' - Means those buildings with large scale activities at a time such as Hotel of 4 star category &above, Public Institutions, Hospitals, Shopping malls with Multiplexes, I.C.T./BPO''s, Educational Institutions having a minimum plot area of 6000 sq.m and a mininmum plinth area of 3000 sq.m.

DEVIATION DURING BUILDING CONSTRUCTION

For any deviation from the sanctioned plan during stage of construction, permission of the Authority shall be obtained and if the construction is not according to the approved plan, the Authority has the power to stop the construction and if the permission holder fails to comply with the notice served by the authority, the Authority is empowered to cancel the building permission and start proceeding against the permission holder as per provisions of Meghalaya Town and Country Planning Act, 1973 as amended from time to time.

COMPLETION CERTIFICATE

On completion of the building, the applicant and the licensed technical personnel as the case may be shall give notice to the authority in prescribed form as given in Form V and V(A).

10.

OCCUPANCY CERTIFICATE

(i) Occupancy Certificate shall be mandatory for all buildings. No person shall occupy or allow any other person to occupy any building or part of a building for any purpose unless such building has been granted an Occupancy Certificate by the Authority.

(ii) The owner shall submit a notice of completion through the supervising registered architect/licensed technical personnel along with prescribed documents and plans to the Authority. The Authority on receipt of such notice of completion shall undertake inspection with regard to the following aspects:

(a) Number of floors

(b) External setbacks

(d) Abutting road width and shall communicate the approval or refusal of the Occupancy Certificate within 15 days or may issue the same after levying and collecting compounding fee, if any.

(iii) For all high rise buildings, the work shall be subject to inspection by the Fire Services Department and the Occupancy Certificate shall be issued only after clearance from the Fire Service Department with regard to Fire Safety and Protection requirements.

(iv) The functional/line agencies dealing with electric power, water supply, drainage and sewerage shall not give regular connections to the building unless such Occupancy Certificate is produced.

(v) The Municipal Authority shall register only the permitted built up area as per the sanctioned building plan and only upon producing and filing a copy of such sanctioned building plan. On the Registration Document it should be clearly mentioned that the registration is in accordance with the sanctioned building plan in respect of setbacks and number of floors.

(vi) The financial agencies/institutions shall extend loan facilities only to the permitted built up area as per the sanctioned building plan.

11.

OFFENCES AND PENALTIES

Any person who violates the building permission sanction issued by the Authority or contravenes with the provisions of the bye-laws or who interferes or obstruct any authorized personnel in the discharge of his duties shall be guilty of an offence. The Authority shall:--

(i) Punish the person by a fine as fixed by the Authority or as per the Meghalaya Town and Country Planning Act, 1973.

(ii) Take suitable action which may include demolition of unauthorized works, sealing of premises, prosecution and criminal proceeding against the offender, in pursuance of relevant laws in force, as decided by the Authority.

(iii) Take suitable action against licensed technical personnel and license may be withdrawn in case of an offence as decided by the Authority.

a) The Authority reserves the right to take action and to debar/blacklist the consultant/technical personnel, if found to have deviated from professional conduct or to have made any misstatement or on the account of misrepresentation of any material fact or default either in authentication of a plan or in the supervision of the construction against the building byelaws and the sanctioned building plans.

b) If the Authority finds at any time any violation of the building byelaws or misrepresentation of fact, or construction at variance with the sanction or building byelaws, inclusive of the prescribed documents, the Authority shall be entitled to revoke the sanction and take appropriate action against such professional and such professional shall not be authorized to submit fresh plans till finalization of the case.

c) Before debarring or blacklisting a professional if found to be indulging in professional misconduct or here she/he has misrepresented any material fact as per (a) and (b) above, the Authority shall give him a show cause notice with personal hearing and shall pass an order to debar him/her for submission and supervision of the construction with full justification for the same. An appeal against this order shall lie with the Appellate Authority.

18.

REQUIREMENT OF SITES

Any piece of land shall be used as a site for construction provided;

(i) The proposed use conforms to the Master Plan, Zonal Plan under Meghalaya Town & Country Planning Act, 1973.

(ii) The site is properly drained or capable of being drained.

(iii) The site have proper means of access.

(iv) The site is not prone to land slide.

(v) Generally, no earth cutting shall be permitted in order to achieve more no. of basements and all building proposals shall follow the slope profile of the plot and such earth cutting shall be limited to a maximum of 3.00 meters only. However the Authority may relax the same owing to site conditions and the maximum earth cutting height shall be upto the crest of the RCC wall being limited to 6.00 m only.

NO LAND SHALL BE USED AS A SITE FOR THE CONSTRUCTION OF BUILDING-

(i) If the site is found to be liable to liquefaction as per soil survey report under the earthquake intensity of the area, except where appropriate protection measures are taken.

(ii) If the Authority finds that the proposed development falls in the area liable to flooding, except where protection measures are adopted to prevent flooding damage.

20.

EXTERIOR OPEN SPACE

The building envelop shall be governed by the following minimum clear open space and setbacks:--

(I) Front setback

(a) Every building abutting a street/footpath shall have a front setback with a minimum width of 3 meters from the front property line to the front building envelop.

(b) In case the site fronts on two streets, both of which are major roads, then the front setback shall be a minimum of 3.00 m from the edge of both the roads'' right of way.

(c) In case the plot fronts two streets, one of which is a major road and the other a minor road but having the potential of being developed into a major road and or leading to an attraction zone(s), then the front setback shall be a minimum of 3.00 m from the edge of both roads'' right of way.

(II) Side and Rear setback

Every building shall have a minimum clear side and rear setback as prescribed in these byelaws. No use is permitted in this open space except steps and soak pit or in case this space is 3.00 m wherein parking of vehicles is allowed.

29.

Seismic Strengthening/Retrofitting:

Prior to seismic strengthening/retrofitting of any existing structure, evaluation of the existing structure as regards vulnerability in the specified wind/seismic hazard zone shall be carried out by a Registered Structural Engineer/Registered Structural Design Agency. If as per the evaluation of the Registered Structural Engineer/Registered Structural Design Agency, the seismic resistance is assessed to be less than the specified minimum seismic resistance as given in the note below, action will be initiated to carry out the upgrading of the seismic resistance of the building as per applicable standard guidelines.

Note: (a) for masonry buildings reference is to be made to IS:4326 and IS: 13935 and (b) for concrete buildings and structures reference to be made to BIS code on evaluation and seismic strengthening for retrofitting of RCC buildings under preparation at present.

30.

Review of Structural Design:

(i) The Competent Authority shall create a Structural Design Review Panel (SDRP) consisting of Senior Structural Design Engineers on Record and Structural Design Agencies on Record, whose task will be to review and certify the design prepared by Structural Engineer on Record or Structural Design Agency on Record whenever referred by the competent authority.

(ii) The Reviewing Agency shall submit addendum to the certificate or a new certificate in case of subsequent changes in structural design.

(iii) Table-VI Gives requirements of SDRP for structures of different complexities.

TABLE-VI

PROOF CHECKING REQUIREMENTS FOR STRUCTURAL DESIGN

*SDPR - STRUCTURAL DESIGN BASIS REPORT

Notes:

� Public building means assembly of large number of people including schools, hospitals, courts etc

� Special structure means large span structures such as stadium, assembly halls, or tall structures such as water tanks, TV tower, chimney, etc. and the requirement by the Competent Authority for third party verification will depend on the type of structure.

40.

The specific Floor Area Ratio and Plot Coverage stipulations shall be as per Table VIII below.

TABLE VIII

FLOOR AREA RATIO & MAXIMUM COVERAGE

Note 1:-- If the Ground Floor is exclusively earmarked for Covered Parking purposes, an additional floor with height as indicated above shall be permitted and the Ground Floor covered parking will not be counted for F.A.R.

Note 2:-- Mumty (stair cover) over staircase on top floor, atrium/cut outs Machine room for lift on top floor as required for the lift machine room installations shall not be taken for FAR calculations. Lift shaft (s) for one floor only shall be taken for FAR calculation.

Note 3:-- Rockery, well and well structures, plant, nursery, water-pool. Swimming pool (if uncovered), platform around a tree, water tank; fountain, bench, ramps, compound, wall, gate, slide, steps outside building, domestic washing place, swing, fire escape staircase, overhead water tank on top of buildings, underground suction tank having roof slab 0.50 mtr. above ground level, cooling tower of A.C. plant rest above the top roof slab and Drainage culvert, conduit, catch-pit, chamber, gutter, culvert on drains shall not be taken for FAR calculations.

43.

REQUIREMENTS FOR HIGH RISE BUILDINGS

(i) The building requirements and standards other than heights and setbacks specified in the National Building Code of India, 2005 shall be complied with.

(ii) Such buildings shall be undertaken by owners by engaging registered architects/licensed technical personnel/builders/developers. The designs and building plans shall be countersigned by the owner, licensed developer, registered architect, licensed technical personnel who shall be responsible for the supervision, structural safety, earthquake safety, fire safety and specifications compliance of such buildings. Buildings shall be designed for compliance with earth quake resistance and resisting other natural hazards. The Completion Certificate shall mention that the norms have been followed in the design and construction of buildings for making the buildings resistant to earthquake, compliance with structural safety and fire safety requirements.

(iii) The work of the building services like sanitation, plumbing, fire safety requirements, lifts, electrical installations, and other utility services shall be executed under the planning, design and supervision of qualified and competent technical personnel.

(iv) The parking requirements shall comply as given in these byelaws. The parking facilities and vehicles driveways etc. shall be maintained to the satisfaction of the Authority.

(v) Provide for rain water harvesting/recycling of waste water in the building.

(vi) All public & private buildings used by the public shall be designed and constructed to provide facilities to the persons with disabilities as prescribed in the National Building Code of India, 2005 & Section E of Meghalaya Building Bye Laws 2011.

(vii) In all buildings irrespective of above height provisions, the requirements of parts of the building like size and area requirements of habitable rooms, kitchen, bathrooms and Water closets, other areas, corridor and staircase widths, service ducts, etc. shall conform to the National Building Code of India, 2005."

The writ petition was moved on 11.04.2014. Mr. K Paul, learned counsel for the petitioner contended that many private buildings more than G+3 are being constructed in the different parts of Shillong city. Mr. SP Mahanta, learned senior counsel appearing for the respondent No. 3 (MUDA) stated that special permissions had been granted to some of the Govt. buildings such as Hospital and others. It is the further submission of Mr. SP Mahanta, learned senior counsel for the respondent No. 3 that only high rise private buildings having above 2000m plinth or more had been granted permission for three storeys i.e. G+3. Special Building is defined under Byelaw 2.47 of the Meghalaya Building Byelaws, 2011 and Special Building means those buildings with large scale activities at a time such as Hotel of 4 Star category and above, Public Institutions, Hospitals, Shopping Malls with Multiplexes, I.C.T./B.P.O''s, Educational Institutions having a minimum plot area of 6000 sq.m and a minimum plinth area of 3000 sq.m. This Court passed an order dated 11.04.2014 that the place and area which had been placed at Zone-5 of seismic activity is a very high damage risk earthquake area and as an interim measure, the private buildings under construction rising more than G+3 shall not go for further construction in Shillong city till the returnable date. The respondent No. 3 is directed to implement the interim order immediately. For easy reference, the said order of this Court dated 11.04.2014 is quoted hereunder:--

"11.04.2014

(T.N.K. Singh, J.)

Heard Mr. K Paul, learned counsel for the petitioner and Mr. ND Chullai, learned Sr. GA assisted by Mrs. NG Shylla, learned GA appearing for the respondents No. 1, 2 & 4. Also heard Mr. SP Mahanta, learned counsel for the respondent No. 3.

In this writ petition in the form of PIL, a matter of public importance is involved inasmuch as, by this writ petition, questioning the constructions of multistoried R.C.C. buildings in the Shillong city which is placed at Zone-5 of the seismic activity. In metrological parlance, a Zone-5 area would be an area in which the highest level of seismic activity is expected and inevitable.

Note to 2.45 of the Meghalaya Building Bye Law, 2011 read as follows:--

"Note: Moderate to very high damage risk zones of earthquakes are given as in Seismic Zones III, IV and V specified in IS:1893; moderate to very high damage risk zones of cyclones are those areas along the sea coast of India prone to having wind velocities of 39 m/s or more as specified in IS:875 (Part 3;) and flood prone areas in river plains (Unprotected and protected) are indicated in the Flood Atlas of India prepared by the Central Water Commission, besides, other areas can be flooded under conditions of heavy intensity rains, inundation in depressions, back flow in drains, inadequate drainage, etc. as to be identified through local surveys in the development plan of the area and landslide prone areas as to be identified by State Government."

Meghalaya Urban Development Authority admitted in the said note that very high damage risk zones of earthquake are as given in seismic Zones III, IV and V as specified in IS:1893. Therefore, it appears that Shillong city had been placed in Zone-5 of the seismic activity which is a very high damage risk zones of earthquake. It is also stated in the writ petition that in the year 1897, an earthquake measuring 8.7 on the Richter scale had shook the whole plateau of Shillong resulting in about 1,542 deaths. It may be noted that Shillong in the year 1897 is the Shillong where there was no concrete jungle but now, Shillong, because of uncontrolled high rise buildings is concrete jungle. Bye Laws 18 of the Meghalaya Building Bye Laws, 2011 read as follows:--

"18. REQUIREMENT OF SITES

Any piece of land shall be used as a site for construction provided;

(i) The proposed use conforms to the Master Plan, Zonal Plan under Meghalaya Town & Country Planning Act, 1973.

(ii) The site is properly drained or capable of being drained.

(iii) The site have proper means of access.

(iv) The site is not prone to land slide.

(v) Generally, no earth cutting shall be permitted in order to achieve more No. of basements and all building proposals shall follow the slope profile of the plot and such earth cutting shall be limited to a maximum of 3.00m meters only. However, the Authority may relax the same owing to site conditions and the maximum earth cutting heights shall be upto the crest of the RCC wall being limited to 6.00 m only.

NO LAND SHALL BE USED AS A SITE FOR THE CONSTRUCTION OF BUILDING-

(i) If the site is found to be liable to liquefaction as per soil survey report under the earthquake intensity of the area, except of the area, except where appropriate protection measures are taken.

(ii) If the Authority finds that the proposed development falls in the area liable to flooding, except where protection measures are adopted to prevent flooding damage."

On bare perusal of Bye Laws 18(v), it appears that generally no earth cutting shall be permitted in order to achieve more number of basements and all buildings proposals shall follow the slope profile of the plot and such earth cutting shall be limited to a maximum of 3.00 meters only. Bye Laws 30 of the Meghalaya Building Bye Law, 2011 read as follows:--

"30. Review of Structural Design:

(ii) The Reviewing Agency shall submit addendum to the certificate or a new certificate in case of subsequent changes in structural design.

(iv)Table-VI Gives requirements of SDRP for structures of different complexities.

TABLE-VI

PROOF CHECKING REQUIREMENTS FOR STRUCTURAL DESING

Notes:

� Public building means assembly or large number of people including schools, hospitals, courts etc.

(emphasis supplied)

� Special structure means large span structures such as stadium, assembly halls, or tall structures such as water tanks, TV tower, Chimney, etc. and the requirement by the Competent Authority for third party verification will depend on the type of structure."

On perusal of the Table-VI of the Bye Laws 30, it appears that that only high rise private building above 2000m plinth area and more than ground + 3 and above are permissible. Mr. K Paul, learned counsel for the petitioner contended that many private buildings more than G+3 are being constructed in different parts of Shillong city. Mr. SP Mahanta, learned counsel for the respondent No. 3 stated that special permissions have been granted to some of the Govt. buildings such as Hospitals and others. This Court may accept for the time being that MUDA had granted special permission to some of the Govt. buildings. But the question put to Mr. SP Mahanta, learned counsel for the respondent No. 3 is "for what reason and under what circumstances, the permissions have been granted to the private buildings, which are under construction, for rising up more than G+3?" Mr. SP Mahanta, fairly submits that without any instruction, he may not be able to answer this question.

Issue Notice returnable within four weeks.

No formal notice needs be issued as the respondents have already entered appearance through their respective counsel.

However, taking into consideration of the public importance involves in this writ petition and also of the facts that the State of Meghalaya has been placed under Zone-5 of the seismic activity and also that the MUDA had admitted in their Bye Laws, 2011 that the place and area which had been placed at Zone-5 of the seismic activity is a very high damage risk earthquake area and also on perusal of the Meghalaya Building Bye Laws, 2011, it appears that an interim order is called for. In the interim, it is provided that the private buildings under construction rising more than G+3 shall not go for further construction in Shillong city till the returnable date. The respondent No. 3 is directed to implement this interim order with immediate effect.

However, liberty is granted to the respondents to file an application for modification/alteration or cancellation of the interim order.

The Registry is directed to furnish a copy of this order to the learned counsel appearing for the parties in the course of the day."

10.

The respondent No. 1 as well as respondent No. 3 filed their respective affidavits-in-opposition. The respondent No. 3 filed two affidavits-in-opposition i.e. (i) affidavit-in-opposition dated 28.07.2014 and (ii) additional affidavit-in-opposition dated 03.09.2014. It is stated in the affidavit-in-opposition filed by the respondent No. 3, in categorical terms that after the interim order dated 11.04.2014, the respondent No. 3-MUDA, Shillong has not issued a single permit above G+3 and also where building permits had been issued prior to the issuance of the interim order dated 11.04.2014 for more than G+3, the ongoing construction is allowed only within G+3. It is also stated in the affidavit-in-opposition filed by respondent No. 3 that immediately after the interim order dated 11.04.2014, notices common to all the ongoing construction had been issued to stop the construction beyond permissible limit i.e. G+3. The respondent No. 1 in his affidavit-in-opposition clearly stated vide para 14 of the affidavit-in-opposition that the operation of the Meghalaya Building Byelaws, 2011 extends to the entire Master Plan Area of Shillong. The respondent No. 3 in his affidavit-in-opposition dated 28.07.2014 stated that with a higher rate of the number of taller buildings coming up in the agglomeration area, and in the absence of the enforcement of the Meghalaya Building Byelaws, 2011, besides the comparatively adverse terrain (higher slopes), the buildings are highly unsafe in the Shillong agglomeration area. These vulnerabilities and shortcomings will lead to heavy casualties in the agglomeration area, in times of disastrous occurrence like earthquake and landslides which is aggravated by the absence of sufficient lifeline building and infrastructure. The overall effect is the post-disaster overburdening of the lifeline buildings and infrastructure in the Municipal area with chaotic and unmanageable scenario resulting to heavy casualties. The respondent No. 3 in his affidavit-in-opposition dated 03.09.2014 (additional affidavit) stated that the respondent No. 3-MUDA, Shillong issued order to all the owners of the ongoing construction of buildings to stop any construction beyond G+3 and receipt of the same had been obtained by the office of the respondent No. 3-MUDA, Shillong. After the interim order of this Court dated 11.04.2014, the respondent No. 3-MUDA, Shillong had not issued a single permit for buildings above G+3 and also that for the building permits had been issued by respondent No. 3-MUDA, Shillong prior to the issuance of the interim order of this Court dated 11.04.2014, constructions are allowed only within G+3 floors.

11.

This Court passed an order dated 11.08.2014 in the present writ petition granting liberty to respondent No. 3-MUDA, Shillong to take up steps even to the extent of sealing of the high rise buildings, construction of which are going on in violation of the interim order dated 11.04.2014. This case was listed again on 04.09.2014, on that day, the learned counsel for the petitioners strenuously contended that he had been apprised thoroughly that inspite of the interim order dated 11.04.2014 and also order dated 11.08.2014 for sealing buildings above G+3, the construction is still going on. The said submission was not accepted by Mr. SP Mahanta, learned senior counsel for the respondent No. 3. In this factual backdrop, this Court passed the order dated 04.09.2014 for constitution of the Committee consisting of:--(1) Learned Deputy Commissioner/In-charge Deputy Commissioner, East Khasi Hills District, Shillong - Chairman, (2) Mr. B Dutta, Director of Urban Affairs Department, Meghalaya, Shillong - Member, (3) Secretary, MUDA, Shillong - Member, (4) Mr. Toki Blah - Member, (5) Mr. JM Thangkhiew (one of the petitioner) - Member, (6) Mr. SP Mahanta, learned Sr. Adv. (for resptd. No. 3) - Member, (7) Mr. ND Chullai, learned Sr.Adv/Sr.GA for the Govt. - Member and (8) Mr. K Paul, learned counsel for the petitioner - Member for conducting the enquiry for the terms and reference mentioned therein and the Committee shall submit a report within three weeks from the date of passing the order. After receiving the report from the Committee, the Court may take up necessary steps including directions, if necessary, to the authority to demolish the buildings after hearing the owners of the buildings concerned. The said order of this Court dated 04.09.2014 reads as follows:--

"04.09.2014

(T.N.K. Singh, J.)

The Govt. respondent i.e. the respondent No. 1 also filed affidavit-in-opposition wherein, it is stated that the Ministry of Urban Development, Govt. of India had constituted an Expert Group headed by Prof. Dr. Anand S. Arya, Prof. Emeritus, University of Roorkee, and other expert members during 1999. The main objective of Expert Group was on natural disaster prevention, preparedness and mitigation having bearing on housing and related infrastructures. This Expert Group had prepared the Vulnerability Atlas of India with respect to earthquake, cyclones and floods. It is also further stated in the affidavit-in-opposition filed by the respondent No. 1, that the report of the Expert Committee was examined by a Committee setup by the Revenue & Disaster Management Department, Govt. of Meghalaya and many of the recommendations more particularly on structural design were duly incorporated in the Meghalaya Building Bye Laws which was re-notified in 2011. It is also stated that the height of building is guided by the provisions of the Meghalaya Building Bye Laws, which amongst different aspects depends on the permissible Floor Area Ratio, permissible height and plot coverage. The Floor Area Ratio and Maximum Coverage under Building Bye Laws, 2011 is also annexed as Annexure-1 to the affidavit-in-opposition filed by the respondent No. 1. In that Floor Area Ratio (Annexure-1 to the affidavit-in-opposition filed by the respondent No. 1), height limit is 42 feet.

Mr. SP Mahanta, learned senior counsel assisted by Ms. I. Lyngwa, learned counsel for the respondent No. 3 by referring to the affidavit-in-opposition filed by the respondent No. 3, clearly stated that the permissions for constructions of buildings were granted by the Meghalaya Urban Development Authority (for short ''MUDA''), Shillong in strict compliance with the Meghalaya Building Bye Laws, 2011. It is also stated categorically in the affidavit-in-opposition that the MUDA had granted permissions for constructions of buildings to the private individuals only to the extent of G+3. This Court also passed an interim order dated 11.04.2014, operative portion of which reads as follows:--

"However, taking into consideration of the public importance involves in this writ petition and also of the facts that the State of Meghalaya has been placed under Zone-5 of the seismic activity and also that the MUDA had admitted in their Bye Laws, 2011 that the place and area which had been placed at Zone-5 of the seismic activity is a very high damage risk earthquake area and also on perusal of the Meghalaya Building Bye Laws, 2011, it appears that an interim order is called for. In the interim, it is provided that the private buildings under construction rising more than G+3 shall not go for further construction above the G+3 in Shillong city till the returnable date. The respondent No. 3 is directed to implement this interim order with immediate effect."

The respondent No. 3 had filed two affidavits i.e. an affidavit-in-opposition dated 28.07.2014 and an additional affidavit dated 03.09.2014. In those two affidavits, the respondent No. 3 in categorical terms stated that after the interim order dated 11.04.2014, the MUDA, Shillong has not issued a single permit above G+3 and also buildings where building permit had been issued by the MUDA, Shillong prior to the issuance of the Court''s interim order for more than G+3 floors, ongoing construction is allowed only within G+3 floors. It is also stated in the affidavit-in-opposition filed by the respondent No. 3 that immediately after the interim order dated 11.04.2014, notices common to all ongoing constructions had been issued to stop the constructions beyond permissible limit. In para 9 of the additional affidavit filed by the respondent No. 3 dated 03.09.2014, it is stated that 56 owners of the ongoing constructions buildings had been served with the copy of the interim order and they are i.e. 56 numbers who have violated the order and the excess floor had been sealed with the help of the Magistrates and Police.

Mr. K Paul, learned counsel for the petitioner strenuously contended that he had been apprised thoroughly that inspite of the interim order dated 11.04.2014 and also the sealing of excess buildings i.e. buildings above G+3 by the MUDA, Shillong, the construction is still going on. This submission is not accepted by Mr. SP Mahanta, learned senior counsel appearing for the respondent No. 3. Therefore, we are of the considered view that a Committee is required to be constituted for ascertaining the correct fact. We also require to mention the relevant portions of the Meghalaya Building Bye Laws, 2011. Bye Law 7 of the Meghalaya Building Bye laws, 2011, has given the power to the authority to stop the construction if the construction is not according to the approved plan and also the authority has the power to cancel the building permission. Bye Law 11 of the Meghalaya Building Bye laws, 2011, clearly provides that suitable action may be taken up by the authority i.e. to demolish the unauthorized works, sealing of premises, prosecution and criminal proceeding against the offender, in pursuance of relevant laws in force, as decided by the authority. The Meghalaya Town & Country Planning Act, 1973, contains the provisions under which the unauthorized buildings i.e. buildings constructed in violation of the permission granted by the concerned authority can be demolished by the authority i.e. MUDA, Shillong.

In the above factual backdrop, the Committee consisting of:--

(1) Learned Deputy Commissioner/In-charge Deputy Commissioner, East Khasi Hills District, Shillong - Chairman.

(2) Mr. B Dutta, Director of Urban Affairs Department, Meghalaya, Shillong - Member.

(3) Secretary, MUDA, Shillong - Member.

(4) Mr. Toki Blah - Member.

(5) Mr. JM Thangkhiew (one of the petitioner) - Member.

(6) Mr. SP Mahanta, learned Sr. Adv. (for resptd. No. 3) - Member.

(7) Mr. ND Chullai, learned Sr. Adv/Sr. GA for the Govt. - Member.

(8) Mr. K Paul, learned counsel for the petitioner - Member, is constituted for conducting the enquiry for the following terms of reference:--

(i) How many of the high rise buildings, which are now under constructions, are constructing in strict compliance with the permissions granted by the authority;

(ii) If there be any violation of the permissions granted by the authority in the ongoing constructions, necessary steps should be taken up by resorting to the provisions under the Meghalaya Town & Country Planning Act, 1973 and also the Meghalaya Building Bye Laws, 2011 i.e. by immediately sealing the unauthorized part of constructions with the help and assistance of the concerned authority i.e. the Deputy Commissioner/In-Charge Deputy Commissioner/Chairman he/she and the concerned Superintendent of Police;

(iii) If necessary, criminal proceeding shall also be taken against the owners, who had constructed the buildings in violation to the permissions granted to them.

The Committee shall submit a detailed report within three weeks from today. After receiving the report from the Committee, the Court may take up necessary steps including directions, if necessary, to the authority to demolish the buildings after hearing the owners of the buildings concerned.

The Registry is directed to furnish a copy of this order in the course of the day to all the members of the Committee mentioned above, if necessary, by sending a Special Messenger."

12.

The said Committee constituted under the order of this Court dated 04.09.2014 after conducting the enquiry by visiting the spot submitted the report dated 16.10.2014, that during the course of inspection, 12 (twelve) buildings were detected to have violated the permissions granted by the respondent No. 3-MUDA, Shillong, they are:

"i) Shri. Narayan Prasad Jhunjhunwala at Police Bazar-Respondent No. 5

ii) Shri. Nilesh Tiberwalla at Thana Road-Respondent No. 6

iii) Shri. Satyabrato Baidya at Jail Road-Respondent No. 7

iv) Shri. Ajit Das Gupta at Jail Road-Respondent No. 8

v) Shri. Bidur Das at Jail Road-Respondent No. 9

vi) Shri. Uday N. Shukla at Oakland Road-Respondent No. 10

vii) Shri. Rajkumari Sinha at Bivar Road-Respondent No. 11

viii) M/S Mentok Ri-Project Pvt. Ltd. at Bivar Road-Respondent No. 12

ix) Shri. Maruf Elahi at Bivar Road-Respondent No. 13

x) Smti. Beroline Khongshei at Laban-Respondent No. 14

xi) Shri. Mohendro Rapsang at Keating Road-Respondent No. 15

xii) Smti. Saini Pala at Motinagar-Respondent No. 16."

The detailed findings and remarks of the Committee are also recorded in Annexure-II to the report dated 16.10.2014. For easy reference the relevant portion of the report dated 16.10.2014 i.e. Paras 6, 7 and also Annexure-II to the report dated 16.10.2014 are quoted hereunder:--

"6. During the course of inspection, 12 (twelve) buildings were detected to have violated the permissions granted by MUDA. They are:

i) Shri. Narayan Prasad Jhunjhunwala at Police Bazar-Respondent No. 5

ii) Shri. Nilesh Tiberwalla at Thana Road-Respondent No. 6

iii) Shri. Satyabrato Baidya at Jail Road-Respondent No. 7

iv) Shri. Ajit Das Gupta at Jail Road-Respondent No. 8

v) Shri. Bidur Das at Jail Road-Respondent No. 9

vi) Shri. Uday N. Shukla at Oakland Road-Respondent No. 10

vii) Shri. Rajkumari Sinha at Bivar Road-Respondent No. 11

viii) M/S Mentok Ri-Project Pvt. Ltd. at Bivar Road-Respondent No. 12

ix) Shri. Maruf Elahi at Bivar Road-Respondent No. 13

x) Smti. Beroline Khongshei at Laban-Respondent No. 14

xi) Shri. Mohendro Rapsang at Keating Road-Respondent No. 15

xii) Smti. Saini Pala at Motinagar-Respondent No. 16.

Detailed Findings and Remarks of the Committee are recorded in the Annexure-II submitted to the Hon''ble High Court of Meghalaya.

13.

The petitioners filed Misc. Case being MC PIL No. 4/2014 in the present writ petition i.e. PIL No. 1/2014 for impleadment of the said 12 (twelve) builders who had constructed their buildings in clear violation as per the report of the said Committee dated 16.10.2014. In that Misc. application i.e. MC PIL No. 4/2014, this Court passed an order dated 27.10.2014 for allowing to implead the said 12 (twelve) violators as respondents No. 5-16 in the connected writ petition i.e. PIL No. 1/2014 and further directed the MUDA, Shillong not to issue any completion certificate in violation of Byelaw 9 and occupancy certificate in violation of Byelaw 10 of the Meghalaya Building Byelaws 2011 to the said 12 (twelve) builders and also to issue notice to the respondents No. 5-16 by registered post with AD as well as by dasti service and the parties are permitted to file their respective additional affidavits or affidavits. The said order of this Court dated 27.10.2014 passed in MC PIL No. 4/2014 reads as follows:--

"27.10.2014

(T. Nandakumar Singh, J.)

By order of this Court dated 4.09.2014 passed in the connected PIL, a Committee was constituted consisting of the following Members:

Learned Deputy Commissioner/In-charge Deputy Commissioner, East Khasi Hills District, Shillong - Chairman.

Mr. B Dutta, Director of Urban Affairs Department, Meghalaya, Shillong - Member.

Secretary, MUDA, Shillong - Member.

Mr. Toki Blah - Member.

Mr. JM Thangkhiew (one of the petitioner) - Member.

Mr. SP Mahanta, learned Sr. Adv. (for resptd. No. 3) - Member.

Mr. ND Chullai, learned Sr.Adv/Sr.GA for the Government - Member.

Mr. K Paul, learned counsel for the petitioner - Member for conducting an inquiry.

The terms of reference for conducting inquiry are as under:

How many of the high rise buildings, which are now under constructions, are constructing in strict compliance with the permissions granted by the authority;

If there be any violation of the permissions granted by the authority in the ongoing constructions, necessary steps should be taken up by resorting to the provisions under the Meghalaya Town & Country Planning Act, 1973 and also the Meghalaya Building Bye Laws, 2011 i.e. by immediately sealing the unauthorized part of constructions with the help and assistance of the concerned authority i.e. the Deputy Commissioner/In-Charge Deputy Commissioner/Chairman he/she and the concerned Superintendent of Police;

If necessary, criminal proceeding shall also be taken against the owners, who had constructed the buildings in violation to the permissions granted to them.

The Committee after conducting the inquiry submitted a report dated 16.10.2014.

We have perused the report.

As per the report, 12(twelve) builders namely;

� Shri. Narayan Prasad Jhunjhunwala at Police Bazar

� Shri. Nilesh Tibrewalla at Thana Road

� Shri. Satyabrato Baidya at Jail Road

� Shri. Ajit Das Gupta at Jail Road

� Shri. Bidur Das at Jail Road

� Shri. Uday N. Shukla at Oakland Road

� Shri. Rajkumari Sinha at Bivar Road

� M/S Mentok Ri-Project Pvt. Ltd. At Bivar Road

� Shri Maruf Elahi at Bivar Road

� Smti Beroline Khongshei at Laban

� Shri Mohendro Rapsang at Keating Road

� Smti Saini Pala at Motinagar are constructing their respective buildings in violation of permission granted by MUDA.

This is an application for impleadment of the said 12(twelve) violators as respondents No. 5 to 16 in the connected PIL.

Byelaw 7 of the Meghalaya Building Byelaws 2011 clearly provides action to be taken from the side of MUDA. For easy reference, Byelaw 7 is quoted herein under:

"7. DEVIATION DURING BUILDING CONSTRUCTION

Under Byelaw 9 of the Meghalaya Building Byelaws 2011, after completion of the building, the builder shall issue notice to MUDA in the prescribed form.

Under Byelaw 10 of the Meghalaya Building Byelaws 2011, occupancy certificate should be mandatory for all buildings and no person shall occupy or allow any other person to occupy any building or part of a building for any purpose unless such building has been granted an Occupancy Certificate by MUDA.

Byelaws 9 & 10 of the Meghalaya Building Byelaws 2011 are quoted herein below:

"9. COMPLETION CERTIFICATE.

On completion of the building, the applicant and the licensed technical personnel as the case may be shall give notice to the authority in prescribed form as given in Form V and V (A).

10.

OCCUPANCY CERTIFICATE.

a) Number of floors

b) External setbacks

c) Parking space provision

d) Abutting road width and shall communicate the approval or refusal of the Occupancy Certificate within 15 days or may issue the same after levying and collecting compounding fee, if any.

(iii) For all high rise buildings, the work shall be subject to inspection by the Fire Services Department and the Occupancy Certificate shall be issued only after clearance from the Fire Services Department with regard to Fire Safety and Protection requirements.

(iv) The functional/line agencies dealing with electric power, water supply, drainage and sewerage shall not give regular connections to the building unless such Occupancy Certificate is produced.

The Municipal Authority shall register only the permitted built up area as per the sanctioned building plan and only upon producing and filing a copy of such sanctioned building plan. On the Registration Document it should be clearly mentioned that the registration is in accordance with the sanctioned building plan in respects of setbacks and number of floors.

(v) The financial agencies/institutions shall extend loan facilities only to the permitted built up area as per the sanctioned building plan."

In the interregnum, MUDA is directed not to issue any completion certificate in violation of Byelaw 9 and occupancy certificate in violation of Byelaw 10 of the Meghalaya Building Byelaws 2011 to the said 12(twelve) builders.

In the present case, it is crystal clear that there is no question of issuing completion certificate and occupancy certificate to the said 12(twelve) violators inasmuch as the inquiry committee had submitted a clear report dated 16.10.2014 that, 12(twelve) builders had violated the sanctioned building plan and permission granted by MUDA. MUDA may also take up necessary action as provided under Byelaw 7 and Section 30 (b) of the Meghalaya Town & Country Planning Act, 1973. The said violators shall not sell their flats in the said 12(twelve) buildings to any intended purchaser by concealing the facts that the buildings are constructing in violation of the sanctioned building plan and permission granted by MUDA.

Respondent No. 3 is directed to publish the gist of this order in the leading local daily for 3(three) consecutive days. It is also made clear that no one shall occupy the said 12(twelve) buildings which are under construction. The Chairman of the said Committee i.e. Deputy Commissioner, East Khasi Hills District shall submit the still photographs of the said 12(twelve) buildings taken in the course of enquiry to this Court on the next date.

Issue notice the opposite party/respondents No. 5 to 16 by Registered Post with AD card as well as by dasti service within 3(three) days.

It is also made clear that parties are permitted to file their respective additional affidavits for bringing subsequent events to the notice of this Court.

Registry is also directed to furnish a copy of this order to the learned counsel for the parties within 48 hours."

14.

After proper service of notice to the respondents No. 5-16, they filed their separate affidavits-in-opposition in the present writ petition. This Court passed an order dated 28.11.2014 in the present writ petition i.e. PIL No. 1/2014 that the MUDA had earlier given special permissions for raising some Govt. buildings beyond G+3 and inline thereof had also granted permissions for raising some private constructions as well, in violation of the Meghalaya Building Byelaws, 2011. Temptations on the part of the MUDA to provide sanction in violation of the Meghalaya Building Byelaws, 2011 at the risk of inviting a larger scale probable seismic disturbances on account of interference with ecological balance need to be closely examined. As in such cases of violations, normally a group of officers work together in an organized manner, sometime also for extraneous consideration, it would be appropriate to seal the records, for the present, in respect of such buildings which have been identified in the report of the Committee constituted by this High Court. In order to entrust this job to an independent agency, we think it appropriate to direct the local Superintendent of Police, CBI, Shillong to act as an officer of the Court only for this limited purpose, without registering a case, to seal the records for production before this Court on the next date of hearing. This Court after considering prima facie material as to the violation of the MUDA Byelaws in granting permissions to the private builders to construct their buildings beyond G+3 had passed the said order dated 28.11.2014 directing the Superintendent of Police, CBI, Shillong to act as an officer of this Court and seal the records for production before this Court. Accordingly, the records for granting permissions to the private builders or owners for construction beyond G+3 in clear violation of the Bylaws, 2011 had been sealed.

15.

On 30.01.2015, the learned counsel for the petitioner submitted that apart from the buildings as pointed out in the report of the Committee constituted by this Court dated 16.10.2014, there are such buildings which had been constructed in serious violation of the Byelaws and guidelines laid down by the MUDA. Since they have not been impleaded as parties, learned counsel for the petitioners prays for liberty to do so by way of filing appropriate application. Accordingly, the petitioners filed Misc. application being MC PIL No. 1/2015 Ref: PIL No. 1/2014 for impleadment of 12 (twelve) more violators, who had constructed above G+3 as respondents No. 17-28 and by an order dated 13.02.2015 passed in the said misc. application i.e. MC PIL No. 1/2015, the said 12 (twelve) violators had been impleaded as respondents No. 17-28 in the present writ petition. This Court also further issued notice to them i.e. respondents No. 17-28 and also allowed to file their respective affidavits-in-opposition. After receipt of the notice, the respondents No. 17-28 filed their separate affidavits-in-opposition. This Court again passed an order dated 10.04.2015 in the present writ petition i.e. PIL No. 1/2014 for constituting a Committee comprising of Mr. Sanjay Goyal, Deputy Commissioner, Shillong as Chairman with Mr. M. Kharkrang, Superintendent of Police, Shillong and the Chief Judicial Magistrate, Shillong as Members, who shall carry out the directions of Division Bench and seal the premises in question as pointed out in the earlier orders and take photographs of the same and a senior officer not below the rank of Secretary, MUDA shall assist with the exercise and he shall provide requisite manpower and necessary logistic support to carry out the directions of this Court. The Committee was further directed to visit construction sites in the ownership of respondents No. 17-28 and identify the violations, if any. The Committee shall take photographs of the illegal construction and place the same on the record of the case so that the Court would pass appropriate order on the next date of listing.

16.

This Court again passed an order dated 17.04.2015 granting two weeks'' time to carry out and implement the said order of this Court dated 10.04.2015. The said Committee submitted the report after inspecting the 12 (twelve) buildings of the respondents No. 17-28 on 28.04.2015 and also took photographs of the said 12 (twelve) buildings. As per the report submitted by the said Committee dated 28.04.2015, the MUDA, Shillong had granted permissions for construction of the floor beyond G+3 i.e. G+4 for respondent No. 16 and respondent No. 17, B, G+4 for respondent No. 18, G+5 for respondent No. 19, G+4 rear block and G+5 in the front block for respondent No. 20, G+5 for respondent No. 21, B, G+4 for respondent No. 22, G+5 for respondent No. 23, B, G+4 for respondent No. 24, B, G+3 for respondent No. 25, G+3 for respondent No. 26, G+4 for respondent No. 27 and G+5 for respondent No. 28. It is the case of the respondent No. 3-MUDA, Shillong that for special reason, permits for construction of buildings beyond G+3 can be granted to some individuals. In the said two affidavits-in-opposition filed by the respondent No. 3-MUDA, Shillong did not give any special reason for granting permissions for construction of buildings more than G+3 to the respondents No. 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27 & 28. Normally, permission for constructing of building only G+3 was granted for residential buildings/residential apartments in strict compliance with Byelaw 18, Table-VI of the Byelaw 30 for high rise building having above 2000 mts. plinth area and more than G+3 and specific floor area ratio and plot coverage stipulations as per Table-VIII of the Byelaw 40. There is not even a whisper from the side of the respondent No. 3-MUDA that for granting permissions for buildings above G+3 to the respondents No. 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27 & 28 the MUDA had adhered to Byelaw 18, Table-VI and Table-VIII which prescribe the maximum permissible F.A.R. and maximum permissible coverage percentage of plot area. For the residential building/apartment maximum permissible F.A.R. and maximum permissible coverage percentage of plot area are 2.0 and 50% respectively and maximum permissible height will be 15 mts. and with ground floor parking 19 mts. Slope profile of the plot as provided under Byelaw 18 shall also strictly be complied with in issuing building permit. From the records available, it is clear that Table-VI to the Byelaw No. 30, Table-VIII to Byelaw 40 and Byelaw 18 are not complied with in granting the permissions to construct the buildings of more than G+3 in favour of the respondents No. 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27 & 28. The relevant portion of the report of the said Committee after inspecting the site on 28.04.2015 for respondents No. 17-28 reads as follows:--

"Observation at Site of the Twelve Buildings impleaded from serial No. 17 to No. 28 by the Committee constituted by the Hon''ble High Court of Meghalaya vide order dated 10th April 2015 in PIL No. 1/2014.

17.

The still photographs of the buildings constructed by the respondents No. 5-28 are being shown in the relevant portion of this judgment and order. It is clear from the record that for the respondents No. 5-12, 14, 15 and respondent No. 26, the MUDA granted permissions for construction of buildings for only G+3. But for no special reason, permissions were granted for constructing beyond G+3 to the respondents No. 13, 16,17-24, 27 & 28. The MUDA who is the competent authority for granting permission for construction of buildings stated very clearly in their 2 (two) affidavits-in-opposition mentioned above that the MUDA did not issue a single permit for G+4 and G+5 for construction of residential buildings/residential apartments after the interim order of this Court dated 11.04.2014 to any private or builder. It is also clearly stated in their 2 (two) affidavits-in-opposition that for issuing permit for constructing building more than G+3, there shall be special reason and that too in strict compliance with the Byelaw 18, Byelaw 30 & Table-VI, Byelaw 40 & Table-VIII and also Byelaw 43. This Court, as early as 11.04.2014, had directed the respondent No. 3-MUDA not to allow the construction of building beyond G+3. A chart containing the findings of the Committee constituted by this Court, buildings constructed by the respondents No. 5-28 and defence taken by the concerned respondents No. 5-28 for construction of buildings illegally is prepared hereunder:--

Respondent No. 5-Shri. Narayan Prasad Jhunjhunwala

18.

The Chart mentioned above, indicates that MUDA granted permission to the respondent No. 5-Shri. Narayan Prasad Jhunjhunwala for construction of building up to G+3 but the respondent No. 5-Shri. Narayan Prasad Jhunjhunwala had constructed upto G+5. Therefore, the two additional floors had been constructed illegally. The only defence taken by the respondent No. 3-MUDA is that under Byelaw 2.28, the building above 4 (four) storeys or building rising 15 mts or more is permissible. But the Byelaw 2.28 cannot be read in isolation with Byelaw 18, Byelaw 30 & Table-VI, Byelaw 40 & Table-VIII and Byelaw 43. The respondent No. 5 in his affidavit-in-opposition vide para 4 clearly admitted that the approval thereof was granted for G+3 floors for commercial use and the building had been constructed as per building plan except some deviation (Byelaw 18 does not allow) which had occurred due to the reason that the upper layer of the soil was found to be very soft which had forced him (respondent No. 5) to place the foundation of the building in depth, resulting a basement emerged therein and the same has been treated by the Enquiry Committee ground floor and ground floor one. Under the Byelaws, 2011, there cannot be two ground floors such as ground floor and ground floor one. As per the permission granted by the MUDA, the respondent No. 5 was never granted permission to construct the basement. Further in his affidavit-in-opposition stated that the Enquiry Committee during the course of inspection found that 2 (two) additional floors had been constructed and the same has been treated as violation, however, it was not the intention of the respondent No. 5 to construct the building in violation of Byelaws known as "the Meghalaya Building Byelaws, 2011". Therefore, in the affidavit-in-opposition of the respondent No. 5 clearly admitted that he had constructed the building beyond sanctioned floor i.e. G+3 by adding two additional floors in the name of ground floor and ground floor one. The so called ground floor and G+1 are shown in the still photograph which was taken in the presence of the respondent No. 5 below:--

Therefore, the above additional floors i.e. G+4 and G+5 above the permissible floors i.e. G+3 are illegal and are to be demolished.

Respondent No. 6-Shri. Nilesh Tiberwal

19.

The Chart mentioned above, indicates that MUDA granted permission to the respondent No. 6-Shri. Nilesh Tiberwal for construction of building up to G+3 but the respondent No. 6-Shri. Nilesh Tiberwal had added 2 (two) more additional floors. The respondent No. 6 in his affidavit-in-opposition stated that the MUDA granted permission for construction of building only for G+3. Shillong being a hilly area having hilly topography, building construction is a tough challenge. Because of the hilly topography, laying of foundation is a herculean task and very often results in some deviations from the sanctioned building plan. Further due to earth-cutting to find hard soil for laying the building foundation, extra excavations (which are not permissible under Byelaw 18) are required to be made which sometimes requires special architectural treatment in the form of basement/foundation to give a strong foundation to the building. Further, due to hilly topography, many a times buildings have to be constructed at split-levels, where the levels of different floors one portion of building are different from the other portion of the building. After, the building permission was granted to the respondent No. 6, he commenced the construction work. While the construction work was going on, the officials of MUDA periodically visited the construction site. By August, 2013, the respondent No. 6 had already completed construction of structural frame. At that stage, the respondent No. 6, who had obtained the building permission for hotel building changed the idea and decided to have a commercial-cum-residential building. Accordingly, the respondent No. 6 submitted a letter dated 15.10.2013 to the Town Planning Officer, MUDA stating that he (respondent No. 6) intends to change the use of the building from hotel to commercial-cum-residential. Further the respondent No. 6 stated that he submitted a revised building drawing plan with an additional floor for approval. This was in view of the fact that under Byelaws, 2011, buildings with G+3 floors are permitted and also in case of ground floor parking, an additional floor may be permitted. It is clear from the affidavit-in-opposition filed by the respondent No. 6 that the MUDA had not granted permission for constructing of 2 (two) additional floors on the request of the respondent No. 6 to construct 2 (two) additional floors. Inspite of knowing clearly that the MUDA had not granted permission to construct 2 (two) additional floors, the respondent No. 6 constructed 2 (two) additional floors i.e. G+4 and G+5. The permit issued by the MUDA for construction was only G+3 for commercial use (hotel) vide letter dated 11.05.2013, which reads as follows:--

"MEGHALAYA URBAN DEVELOPMENT AUTHORITY SHILLONG

No.MUDA.BP/1482/2010-11/8 Dated: Shillong, the 11th May, 2011

To,

Shri. Nilesh Tiberwalla & Prem Lata Tiberwalla, Thana Road, Police Bazar, Shillong.

Subject: Building Permission.

Reference: Your application No. NIL Dated 29th March 2011.

Sir/Madam,

With reference to your application No. Nil, Dated 29th March 2011, I am to inform you that sanction has been granted for erection/re-erection of building at Thana Road, Police Bazar, Shillong, as per provisions of Meghalaya Town and Country Planning Act, 1973 and Meghalaya Building Bye-Laws, 2001 made there under:--

At least a week before alignment of the building and erection of footings, the Authority shall be intimated stating the commencement date and time as per format of commencement certificate so as to depute an authorized official to ensure the correct layout as per approved building plans.

Completion Certificate shall be sent to the undersigned to issue Occupancy Certificate.

This permission shall remain in force for a period of three years with effect from the date of issue.

As per the Electricity Rules part of the building shall have a minimum distance as follows:

a) Low and Medium voltage lines and service line 2.5m vertically and 1.2m horizontally.

b) High voltage lines upto including 33,000v, 3.7m vertically and 2.0m horizontally.

c) Extra High Voltage lines beyond 33,000v, 3.7m vertically and 2.0 horizontally + 0.3m for every additional 33,000v or part thereof.

4.50m/3.00m setback from the major/minor road R.O.W. and minimum side setbacks as per approved drawing from all neighbours, footpaths/drain etc. should be maintained.

Clear setback of 1.80m for septic tank, soak pit should be maintained.

Approval is given for Ground Plus 3 (Three) Floors only for Commercial use (Hotel).

No deviation nor change of use is permissible from approved drawings.

Proposed area for parking should be strictly followed as per approved drawings.

10.

Fire/Emergency exit as shown in the approved drawings shall be provided.

11.

Facilities for persons with Disabilities as per Section E of Meghalaya Building Bye-Laws, 2011 should be incorporated in the building.

12.

(a) The owner above and Shri. M. Kharkongor, Regn. CA/2001/39623, Meghalaya, Shillong are together responsible towards ensuring compliance alignment of condition 1, 5 & 6 above.

(b) The Consultant Engineer, Shri. G.W. Lakadong, Regn. MUDA/LTP/2009/ER 1993/6 in this regard, is binded by this SANCTION to ensure safe and sound Civil Engineering practice at the time of execution and construction of the Building.

(c) The Owner with Shri. M. Kharkongor and Shri. G.W. Lakadong are jointly responsible towards execution, construction and upto completion of the building (Sound Civil Engineering Practices i.e. usage of building materials/correct concrete mix, steel reinforcement details etc.).

(d) The Consultant Engineer, Shir. G.W. Lakadong shall ensure that construction of retaining walls, foundation etc. is as per IS 1904-1986.

(e) The Consultant Engineer shall ensure that Rain Water Harvesting system has to be provided in the building.

Enclosed: 1 set of approved drawings

Yours faithfully, Sd/- Town Planning Officer, Meghalaya Urban Development Authority, Shillong"

The still photograph of the building constructed by the respondent No. 6 adding 2 (two) additional floors i.e. G+4 and G+5 is shown hereunder:--

The respondent No. 6 had admitted in his affidavit-in-opposition that the building is constructed at the gradient of the road i.e. hill slope of loose soil. The illegally constructed additional floors i.e. G+4 and G+5 are to be demolished.

Respondent No. 7- Satyabrata Baidya

20.

The Chart mentioned above, indicates that MUDA granted permission to the respondent No. 7-Shri. Satyabrata Baidya for construction of building up to G+3 but the respondent No. 7-Shri. Satyabrata Baidya constructed 1 (one) additional floor i.e. G+4. The respondent No. 7 in his affidavit-in-opposition is not denying that the permission granted for constructing of building to him (respondent No. 7) is only G+3. It is stated in his affidavit-in-opposition that the permission for the building up to ground floor plus 3 (three) floors is in accordance with the sanctioned plan, but in a small portion of the floor area there is an open elevated portion below the ground floor required to bring the ground floor of the building at one plain as per the sectional drawing which has a height of 2.40 meters i.e. much less than the height of 3 meters required to constitute as a floor and this has been erroneously termed as ground floor by the Committee constituted by this Court. The said open elevated space below the portion of the ground floor of the building of the respondent No. 7 under construction qualifies to be treated as a basement or cellar as defined in the Byelaws, 2011 but does not qualify to be a floor. The respondent No. 7 further stated that he had submitted an application for filling up the ground level so that 1 (one) additional floor i.e. G+4 may not be demolished. Whatever be the case, the respondent No. 7 had admitted that he constructed 1 (one) additional illegal floor i.e. G+4 and in order to save that floor, he wants to fill up one of the floor at the ground level by earth. The still photograph of the building of the respondent No. 7 constructed at the gradient of the road i.e. hill slope which shows the illegally constructed 1 (one) additional floor i.e. G+4 is shown as hereunder:--

The illegally constructed 1 (one) additional floor (G+4) is to be demolished.

Respondent No. 8 Shri. Ajit Das

21.

The Chart mentioned above, indicates that MUDA granted permission to the respondent No. 8-Shri. Ajit Das Gupta for construction of building up to G+3 but the respondent No. 8-Shri. Ajit Das Gupta constructed 1 (one) illegal additional floor i.e. G+4. The construction of the G+4 i.e. illegal additional floor is not yet completed. It is also a fact that the respondent No. 8 had constructed the building at the gradient of the road i.e. hill slope of loose soil. The respondent No. 8 in his affidavit-in-opposition stated that the building constructed by him (respondent No. 8) comprising of ground floor plus 3 (three) floors is in accordance with the sanctioned plan but in a small portion of the floor area there is an open elevated portion below the ground floor of the building at one plain as per the sectional drawing which has a height of 2.50 meters. It is the case of the respondent No. 8 in his affidavit-in-opposition that the ground floor which is open cannot be constitute as a floor and this has erroneously termed as ground floor by the Committee constituted by this Court. The still photograph of the building of the respondent No. 8 which shows 1 (one) illegal additional floor i.e. G+4 under construction is shown as hereunder:--

The illegally constructed additional floor i.e. G+4 is to be demolished.

Respondent No. 9 Shri. Bidur Kumar Das

22.

The Chart mentioned above, indicates that MUDA granted permission to the respondent No. 9-Bidur Kumar Das for construction of building up to G+3 but the respondent No. 9-Shri. Bidur Kumar Das constructed 1 (one) additional floor i.e. G+4. The respondent No. 9 in his affidavit-in-opposition stated that the building constructed by him (respondent No. 9) is less than 15 meters. But he (respondent No. 9) is not denying that the permission for constructing the building is only G+3. It is pertinent to mention that the maximum height limit for constructing building could be 15 meters, but does not mean that every person can construct his building upto 15 meters. One cannot say that for constructing building upto 15 meters, permission of MUDA is not required. It is admitted case of the parties that the building is to be constructed as per the permission granted by the MUDA and permission granted by the MUDA to the respondent No. 9 is only for construction of building upto G+3. But the defence of the respondent No. 9 in his affidavit-in-opposition is that there is no intentional infringement of the fundamental rights guaranteed under Articles 19 and 21 of the Constitution of India. The respondent No. 9 further submits that perhaps in view of the Byelaw 2.41, the said building of the respondent No. 9 in question does not fall under the purview of the high rise building. Therefore, it is clear from the affidavit-in-opposition filed by the respondent No. 9 that the respondent No. 9 got the permission for constructing his building only for G+3 but the respondent No. 9 constructed one additional floor i.e. G+4 illegally. The still photograph of the building of the respondent No. 9 constructed at the gradient of the hill slope showing illegal additional floor i.e. G+4 is shown as hereunder:--

The illegally constructed additional floor i.e. G+4 is to be demolished.

Respondent No. 10 Shri. Uday N. Shukla

23.

The Chart mentioned above, indicates that the MUDA granted permission to the respondent No. 10-Shri. Uday N. Shukla for construction of building up to G+3 but the respondent No. 10-Shri. Uday N. Shukla constructed 1 (one) additional floor i.e. G+4. The respondent No. 10 in his affidavit-in-opposition also admitted that the permission for constructing of his building is only G+3. In order to save the illegally constructed one floor i.e. G+4, the respondent No. 10 is seeking leave of the Court to fill up the ground floor below the road level. It is clear that the respondent No. 10 had constructed his building at the gradient of the road. The road is at the hill slope. It is also very clear that the permit issued to the respondent No. 10 vide letter of the Secretary, MUDA dated 24.09.2010 shows that the approval is granted only for construction of building for G+3 only for apartmental occupancy residential use. The said letter of the Secretary, MUDA dated 24.09.2010 reads as follows:--

"MEGHALAYA URBAN DEVELOPMENT AUTHORITY SHILLONG

No.MUDA.BP/1227/2010-11/8 Dated: Shillong, the 24th September, 2010

To,

Shri. Uday Narayan Shukla & Smti. Urmila Shukla, Oakland, Shillong

Subject: Building Permission.

Reference: Your application No. Nil Dated 23rd August, 2010.

Sir/Madam,

With reference to your application No. Nil, Dated 23rd August, 2010, I am to inform you that sanction has been granted for erection/re-erection of apartmental building at Oakland, Shillong, as per provisions of Meghalaya Town and Country Planning Act, 1973 and Meghalaya Building Bye-Laws, 2001 made there under:--