Mttra Karmakar vs Gauhati Metropolitan Development Authority and Others

D.N. Chowdhury, J.—This Writ Application is directed against and arises out of a Notice bearing No. GMDA/BP/566/94/23 dated 27.3.95, issued by the Respondents/authorities u/s 88 of the GMDA Act, 1985 for removal/demolition of the Petitioner''s unauthorised building.

Prior to the above impugned notice, a notice bearing No. GMDA/BP/566/94/21 dated 23.2.95, Annexure-C to the Petitioner, was also issued to the Petitioner u/s 85 of the said GMDA Act, 1985, alleging deviation from the approved plan in the matter of construction of his building and to show cause as to why action under the law should not be taken for the alleged violations. It seems that the Petitioner showed cause and thereafter the impugned notice was issued. Hence this petition.

The impugned action of the Respondents is challenged on two grounds - firstly, that the notice dated 23.2.95, Annexure-C, was issued by a person who is not authorised to issue such notice. And secondly, it was contended that the impugned notice issued u/s 88 of the Act, 1985 directing demolition/removal of the building, was without due application of mind.

The Gauhati Metropolitan Development Authority Act, 1985 (The GMDA Act, 1985 in short) was enacted to provide for establishment of an authority for planned development of the Gauhati Metropolitan area and for matters connected there with or incidental thereto in order of enforce the statutory provisions of the Act, 1985. The Act, 1985, therefore created the Authority for preparation of a Master Plan and for enforcement of the statutory provisions of the Act, 1985. The Act also conferred on the Development Authority the power to grant permission for construction of buildings. Similarly, the Authority is empowered to take all possible steps for enforcement of the statutory provisions including directions/permission for construction of building including the power of removal/demolition. All these powers including the drastic power of demolition, are conferred on the Authority for proper implementation of the Act, 1985. The GMDA, amongst others, consists of the Chief Executive Officer who is appointed by the State Government ex-officio. The Act envisages the Chief Executive Officer to exercise the executive powers on behalf of the Authority. The Chief Executive Officer is a wholetime Officer. The said power cannot be exercised by any Officer other than the designated Officer. The power of delegation u/s 9, as pointed out by Mr. A.B. Choudhury, learned Counsel for the GMDA, cannot legitimise the action taken by a person who is, admittedly, not appointed as the Chief Executive Officer. The aforesaid notice, Annexure-C, on that account alone, is liable to be set aside the accordingly, I set aside the Notice dated 23.2.95, Annexure-C.

In the aforesaid view of the matter, I am not required to go into the matter of validity of the impugned notice issued u/s 88 of the Act, 1985, as contained in Annexure-E. Therefore, Annexure-E, the impugned notice for demolition/removal automatically stands set aside. However, setting aside of the impugned notice will not preclude the authority to initiate an action if they are so advised, under the law.

The writ petition accordingly is allowed to the extent indicated above. There shall be no order as to costs.