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Judgment
B.P. Katakey, J.—These writ petitions are arising out of the construction of the multistoried RCC building in S.C. Goswami Road, Panbazar, Guwahati, challenging the notice issued by the Guwahati Municipal Corporation (''GMC'') to stop construction and also the order issued by the Guwahati Metropolitan Development Authority (''GMDA'') for demolition of multistoried building in question constructed by the petitioners in W.P.(C) No. 5018 of 2002 and petitioner Nos. 1 and 2 in W.P.(C) No. 2747 of 2006. The petitioners in W.P.(C) No. 5146 of 2002 raised the question of illegal and unauthorized construction of the said building and prayed for demolition of the same. Since the matter in issue in the writ petitions are common being relating to the construction of the said multistoried building, all the writ petitions are taken up for hearing analogously as agreed to by the learned Counsel for the parties.
(A) Background facts:
The facts in brief in respect of the writ petitions are narrated below:
(I) W.P.(C) No. 5018 of 2002
By this writ petition the petitioner M/s. Priyanka Estate International (P.) Ltd. and its directors have challenged the order dated 31.7.2002 issued by the Commissioner, GMC informing the petitioners that the plans submitted by them for construction of the building pursuant to their application dated 27.6.2002 is insufficient for not filing the affidavit for structural design as per format of the building bye-laws, no objection certificate from the State Fire Department and declaration in affidavit to maintain the F.A.R. within 487 as well as the even dated notice issued by the Associate Plan GMC to the petitioners to stop construction of the RCC building in terms of the direction issued by the Commissioner GMC and asking them to produce the no objection certificate and approved plan within three days from the date of receipt of the notice.
(II) W.P.(C) No. 2747 of 2006
The petitioner-builder M/s. Priyanka Estate International (P.) Ltd. along with one director of the said company and an occupier of the Flat No. 5B of the multistoried building in question, by this writ petition have challenged the order dated 30.5.2006 issued by the Chief Executive Officer, GMDA u/s 88 of the Gauhati Metroplitan Development Authority Act, 1985 (''the 1985 Act'') for removal of the building constructed by the petitioner No. 1 unauthorizedly, on the ground of violation of the building bye-laws to the effect that (a) FAR of the building is 490 which exceeds allowable FAR 300, (b) the maximum floor height 93 ft. which exceeds allowable height of 76 ft. in that road, (c) setback of 15 ft. side to 20 ft. rear has not been maintained as the building has been used for commercial purpose with residential at top floors, (d) allowable maximum balcony projection of 1/4th of the building length in any side as allowable has not been maintained, (e) non-availability of two staircases and lift on opposite directions as per building plan and (f) construction of the building despite the order to stop construction.
(III) W.P.(C) No. 5146 of 2002
This writ petition has been filed by Sanatan Dharmasabha and three residents of Panbazar locality of Guwahati city challenging the action on the part of the authorities in granting the permission for construction of the multistoried building in question and also for demolition of the illegal and forceful construction of the said multistoried building constructed by M/s. Priyanka Estate International (P.) Ltd. (petitioner No. 1 in the other two writ petitions), on the ground that such building permission were given in violation of the building bye-laws of the GMC as well as GMDA and also unauthorized construction of part of the building without any permission from any authority.
Mrs. Madhu Singhania, (petitioner No. 3 in W.P.(C) No. 5018 of 2002) Director of the M/s. Priyanka Estate International Pvt. Ltd. filed an application on 26.11.1999 before the GMC seeking permission for construction of basement, ground floor, Mezzanine and 1st, 2nd, 3rd and 4th floors as well as part of 5th floor over a plot of land covered by Dag No. 102, Patta No. 338, Village Sahar, Guwahati (3rd part), Mouza-Guwahati, P/O-Panbazar in the district of Kamrup, Assam by the side of S.C Goswami road, Panbazar.
The Commissioner, GMC on 3.2.2000 pursuant to the said application granted permission to construct the commercial RCC building having basement floor, ground floor, mezzanine floor and 1st to 5th floor (part) with the floor area of 7112 sq. ft. for basement floor (car park); 2096 sq. ft. mezzanine floor; 5690, sq. ft ground floor; 7283 sq. ft. each from 1st to 4th floor and 3817 sq. ft. 5th floor with condition that (i) the builder along with M/s. Creations, the engineering firm, will be responsible for any kind of structural failure of the building, (ii) no objection certificate from the State Fire Service organization is to be obtained, (iii) road side drain along with the road is to be constructed at the cost of the builder, (iv) before installation of deep tube well, no objection certificate from Central Ground Water Board is to be obtained, (v) chutes are to be provided inside the building for garbage disposal, (vi) at least two nos. of dustbins are to be placed near the plot at the cost of the builder. Such building permission was granted in accordance with the plan submitted by the applicant. M/s. Priyanka Estate International (P.) Ltd. thereafter on 8.2.2000 filed another application before the GMC authority seeking permission for construction of the remaining part of the 5th floor as well as 6th, 7th, and 8th floors. The Commissioner GMC thereafter, informed the said writ petitioner-builder vide communication dated 27.3.2000 about rejection of the permission for construction on the ground that the plan submitted by it is insufficient as the (i) set back provided is inadequate (ii) the proposed height of the building is 93 ft. though the maximum allowable height of the building is 76 ft. (iii) the margin on both sides and rear is less than the required norms (iv) FAR (Floor Area Ratio) exceeds the allowable FAR of 300 and the structural certificate has not been submitted.
The writ petitioners-builder, being aggrieved by the order of rejection of permission filed an appeal before the appeal committee of the GMC u/s 438 of the Gauhati Municipal Corporation Act, 1971 (in short 1971 Act) which was registered as Appeal Case No. 21 of 2000. The said appellate authority vide order dated 5.5.2000 held that the appellant therein be accorded permission as sought for and also set aside the order passed by the Commissioner, GMC rejecting the permission. It is evident from the said judgment that the width of the existing road by which side the building is to be constructed is 38 ft. Since the Commissioner GMC in spite of the appellate authority''s order did not issue any permission for construction of the said upper floors, an application was filed before the Minister in-charge Gauhati Development Department on 28.8.2001 seeking a direction to the Commissioner, GMC to implement the order of the standing appellate committee and issue necessary permission so that upper floors of the building as proposed can be constructed. Similarly, an application was also filed before the Commissioner, GMC on 26.9.2001 for implementation of the order passed by the standing appeal committee.
The Commissioner, GMC on 15.10.2001 referred the issue regarding granting of permission for construction to the State Government. The Deputy Secretary, Government of Assam on 28.11.2001 informed the Commissioner, GMC to grant permission in terms of the order passed by the standing appellate authority. The Commissioner, GMC, thereafter, vide order dated 29.5.2002 informed the petitioner-company that its prayer for construction of the commercial building up to 8th floor has been considered by the, Administrator-cum-Minister, Guwahati Development Department, Government of Assam with the condition that the no objection certificate from State Fire Department is to be obtained to submit affidavit regarding the structural certificate not to exceed the FAR beyond 487 and subject to the payment of penal charge to the Corporation amounting to Rs. 10 lakh.
On 30.7.2002 a complaint was filed by the residents of that locality before the Hon''ble Chief Minister, who was the minister in-charge of GMDA, raising complaint about illegal high rise building constructed by the petitioner-builders. The Commissioner, GMC on 31.7.2002 informed the petitioner that his application dated 27.6.2002 which was filed pursuant to the Commissioner''s order dated 29.5.2002 could not be accepted and the plan submitted by it for construction is insufficient for absence of no objection certificate from State Fire Department, proper affidavit for structural design as per format of the building bye-laws and declaration in affidavit to maintain the FAR within 487. On the same date the Associate Planner of GMC by another order, as directed by the Commissioner asked the petitioner to stop construction, as, such construction has been going on without any permission. These two orders of the GMC authority dated 31.7.2002 have been challenged in W.P.(C)No. 5018 of 2002.
The Chief Executive Officer, GMDA on 18.2.2002 issued a notice to Pramod Singhania (petitioner No. 2 in W.P.(C) No. 2747 of 2006) directing him to remove unauthorised construction of the RCC building within three days from the date of receipt of the notice, informing him that failing which necessary action as per provision of the 1985 Act will be initiated without any further intimation, as the writ petitioner did not comply with the notice dated 2.2.2001 and the order of demolition dated 5.9.2001. The petitioner No. 2 of the said writ petition informed the GMD Authority on the same day, i.e., on 18.2.2002 that necessary permission was obtained for construction of the building from the GMC on 3.2.2000 and also intimating that they did not receive any letter as mentioned in the said notice. The Chief Executive Officer, GMDA thereafter on 21.2.2002 asked the petitioner No. 2 to furnish all copies of the approved drawings and building permission in support his letter dated 18.2.2002 within two days from the date of receipt of the said letter, in reply to which the petitioner No. 2 again informed the GMD Authority that no objection certificates and the permission for construction was granted on 3.2.2000 by the GMC and under took to submit the approved drawings as copies of such drawings are with the architect, who was out of station at that point of time. The petitioner thereafter on 2.4.2002 sent a. photocopy of the drawings approved by the GMC authority for construction of the building at Panbazar.
The Chief Executive Officer, GMDA on 3.5.2002 issued a notice to the petitioner No. 2 directing to remove/demolish the unauthorized construction of the 6th and 7th floor as well as the cantilever as the same were constructed in violation of the 1985 Act as well as the building bye-laws and zoning regulation. The writ petitioner on receipt of the said notice informed Chief Executive Officer, GMDA on 6.5.2002 that they obtained the permission for construction from GMC and for construction of the 6th to 8th floor they obtained the judgment of the standing appellate committee and, therefore, there was no unauthorized construction. It was further informed that there is no violation of approved drawing regarding cantilever. The Town Planner, GMDA, thereafter on 4.10.2002 informed the petitioner No. 2 that a routine inspection of the multistoried building will be conducted by the authority and, therefore, asked him to submit copies of the building permission and approved drawing on the basis of which the construction was made and informed him that in the event of failure to co-operate with the authority as well as to submit the said building permission and approved drawing within the stipulated time and if continued to make construction of the building deviating from the building bye-laws and permission issued to him, the authority will initiate action like demolition, etc., as per the 1985 Act without any further notice.
After about 2 1/2 years the GMDA issued another notice u/s 87 of the 1985 Act on 6.5.2005 directing the petitioner No. 2 to stop construction forthwith and to show cause within 10 days as to why unapproved construction should not be demolished. Thereafter the order dated 30.5.2006 was issued by the Chief Executive officer, GMDA directing the petitioners to demolish the unauthorized building constructed in violation of the 1985 Act as well as the building bye-laws and the zoning regulation within five days of the receipt of the order on the ground which has already been reflected herein above. Meanwhile, the Director of Fire Services, Assam on 2.2.2006 issued the certificate to the effect that it has no objection in the occupation/ utilisation of the said commercial/residential building, from where it appears that the building up to 8th floor has been constructed by the petitioner. The order dated 30.5.2006 issued by the Chief Executive Officer, GMDA is under challenge in W.P.(C) No. 2747 of 2006.
(B) Submission of the learned Counsel for the parties
We have heard Mr. N. Dutta, senior counsel for the petitioners in W.P.(C) No. 5018 of 2002 as well as in W.P.(C) No. 2747 of 2006, Mr. N.C.'' Das, learned senior counsel for the petitioners in W.P.(C) No. 5146 of 2002, Mr. K.N. Choudhury, learned Additional Advocate General, Assam on behalf of the State respondents, Dr. N.K. Singh, learned standing counsel for the GMDA as well as Mr. S. Samaria learned standing counsel appearing on behalf of the GMC authority.
Mr. Dutta, the learned senior counsel for the writ petitioners in W.P.(C) Nos. 5018/2002 and 2747/2006 challenging the communications dated 31.7.2002 issued by the Associate Planner, GMC directing the petitioners to stop construction of the RCC building as well as the order dated 30.5.2006 issued by the Chief Executive Officer, GMDA u/s 88 of the 1985 Act directing the petitioners to demolish the unauthorised construction has submitted that the GMC authority cannot ask the petitioners to stop construction of the building as the building permission which was refused by the Commissioner, GMC vide order dated 27.3.2000 was set aside by the standing appellate committee, GMC in an appeal filed by the petitioners u/s 438 of 1971 Act vide judgment and order dated 5.5.2000 and the Commissioner having not making any reference within two months from the date of such judgment and order is bound to comply with the direction issued by such appellate authority. It has further been submitted by the learned senior counsel that as the Commissioner did not comply with such order in spite of repeated request made by the petitioners they had to approach the Government of Assam in Guwahati-Development Department and accordingly the Deputy Secretary of the said department vide communication dated 28.11.2001 asked the Commissioner, GMC to issue the building permission pursuant to the order passed by the standing appellate committee and ultimately vide order dated 29.5.2002, the Commissioner, GMC in fact granted the permission for construction up to 8th floor with the conditions stipulated in the said order which includes the condition of no further FAR beyond 487 and also payment of penal charge to the Corporation amounting to Rs. 10 lakh. Mr. Dutta, learned senior counsel has also submitted that the penal charge which was levied by the said order has immediately been paid to the Corporation and other conditions stipulated in the said order have also been complied with and, therefore, there cannot be any question of stopping construction of said building.
It has further been submitted that after the order passed by the standing appellate committee the Commissioner is required to issue the formal permission only and even if such permission is not issued, the petitioners by virtue of the order passed by the such appellate authority is entitled to make construction and such construction of the petitioners cannot be termed as unauthorized construction. Referring to the provision of Section 425 of 1971 Act, the learned senior counsel has submitted that since the GMC was superseded at the relevant point of time the administrator exercises the power of the corporation and in the instant case it is evident from the communication dated 29.5.2002 issued by the Commissioner, GMC that the Administrator, GMC who happens to be the Minister of Gauhati Development Department allowed the building permission with conditions stipulated therein which is also evident from the Clause 5 that the petitioner was asked to submit completion certificate and obtain occupancy certificate from GMC. The learned senior counsel, therefore, submits that the construction of the building up to FAR 487 cannot be termed as unauthorized, i.e., the construction of the remaining portion of the 5th floor as well as entire 6th, 7th, 8th floors of the building was constructed in terms of the permission given by the GMC.
The learned senior counsel referring to the interim order dated 12.8.2002 passed in W.P.(C) No. 5018 of 2002 has submitted that there was a positive interim direction issued by the learned Single Judge directing the Municipal Authority not to take any step to pull down the building and also suspending the operation of the communication dated 31.7.2002 issued by the Associate Planner directing the petitioner to stop construction and, therefore, the petitioners have not committed any illegality in making construction up to 8th floor. It has further been submitted by the learned senior counsel that even subsequent interim order dated 20.9.2002 by which the petitioners were directed not to make any construction over the land in question and to stop all the construction activities, was in force for ten days only, which expired on 29.9.2002 and thereafter there was no order extending such order.
Mr. Dutta, learned senior counsel challenging the order dated 30.5.2006 issued by the Chief Executive Officer, GMDA u/s 88 of the 1985 Act has submitted that the GMDA authority cannot issue any order of demolition of the building because there was no unauthorized construction at all, the permission for construction having been granted by the GMC first by order dated 3.2.2000 up to part of the 5th floor which includes basement and mezzanine floor and thereafter by virtue of the order passed by the standing appellate committee dated 5.5.2000 as well as the order of the Commissioner, GMC dated 29.5.2002 for remaining part of the 5th floor up to 8th floor. Mr. Dutta has further submitted that it is apparent from the GMC''s own record that the petitioners did not make any construction beyond 487 FAR which was granted by the GMC vide order dated 29.5.2002.
Referring to Section 88 of the 1985 Act, the learned senior counsel has further submitted that Section 88 stipulates giving a reasonable opportunity to show cause to the owner/occupier, manager or the person concerned, as to why an order for demolition u/s 88 should not be issued. But in the instant case, according to the learned senior counsel, no such notice was issued before issuance of the order dated 30.5.2006, thereby violating the statutory provision contained in Section 88 of the said Act. Referring to the order dated 30.5.2006 issued by the GMDA which has a mentioned about show cause notices dated 2.2.2001, 5.9.2001, 18.2.2002 and 4.10.2002, the learned senior counsel has submitted that it is evident from the communication dated 18.2.2002 sent by the petitioner in reply to the GMDA''s order dated 18.2.2002 to remove construction for alleged failure to comply with the notices dated 2.2.2001 and 5.9.2001 that the petitioners have specifically stated that they did not receive any notices dated 2.2.2001 and 5.9.2001. Regarding the other notices dates 18.2.2002 as well as 4.10.2002 as mentioned in the order of demolition dated 30.5.2006, the learned senior counsel has submitted that the said notices are not the show cause notices as required to be issued u/s 88 of the 1985 Act before issuance of notice of demolition and in fact communication dated 18.2.2002 is a direction to remove construction and 4.10.2002 was a notice regarding the inspection of the multistoried building. The learned senior counsel further submits that even assuming that the notices dated 2.2.2001 and 5.2.2001 were served on the petitioners then also it is evident from the said notices that the petitioners were not informed as to how they have violated the approved building plan and also as to how the construction is unauthorized. That apart the grounds on which the order u/s 88 of the 1985 Act has been passed by the GMDA on 30.5.2006 have never been informed by the said authority to the petitioner nor in any of the earlier notices, though under the provision of the 1985 Act, the GMDA before issuing any order u/s 88 is statutorily bound to inform the petitioners about the deviations and the nature of unauthorized construction so as to give him the opportunity to make representation effectively and completely against such notices. According to the learned senior counsel the requirement of issuing notice and filing of show cause is not an empty formality and same must be an effective opportunity, which can be treated to be effective if the petitioners are given the details of deviations and unauthorized construction. But in the instant case, according to the learned Counsel senior counsel, the same having not been given, the order of demolition dated 30.5.2006 issued by the GMDA u/s 88 of the 1985 Act is illegal being violative of the basic principles of natural justice as stipulated in u/s 88 itself.
The learned senior counsel has further submitted that it cannot be said that no prejudice was caused to the petitioners for non-issuance of such show cause notice as the petitioners in the reply dated 6.5.2002 against the order dated 3.5.2002 issued by the GMC authority to remove unauthorized construction of 6th and 7th floor has given an explanation regarding such alleged unauthorized construction of cantilever and had that opportunity been given the petitioners, they could have explained the entire situation to satisfy the GMD authority and in that case the said authority would not have issued the order of demolition. The learned senior counsel, therefore, submits that the order of demolition issued by the Chief Executive Officer, GMDA dated 30.5.2006 is also illegal on both the grounds, firstly, the GMC has granted the permission for construction up to 8th floor and secondly, on the ground of violation of principle of natural justice as embodied in the Section 88 of the 1985 Act.
It has further been submitted by the learned senior counsel for the petitioners that the entire building has been assessed to tax by the GMC authority and such assessment naturally done on being satisfied about making construction in terms of the permission granted and, therefore, at this stage the authority of GMC and GMDA cannot turn around and say that the building constructed by the petitioner is unauthorized. The learned senior counsel in support of his contention that the interim order dated 20.9.2002 passed in W.P.(C) No. 5018 of 2002 ceased to operate after ten days, has placed reliance on the decision of the Apex Court in Dr. Luis Proto Barbosa v. Union of India and Ors. reported in (1992) Suppl. 2 SCC 644.
Mr. K.N. Chowdhury, learned Additional Advocate General, Assam appearing on behalf of the State respondents has submitted that for making construction of any building the permission from the GMC authority is a condition precedent and unless such permission is granted no construction can be raised by any one. It has further been submitted that such construction has to be as per the plan approved by the GMC authority and no deviation from such approved plan can be made. In the instant case according to the learned Additional Advocate General, the permission was admittedly given by the GMC authority for construction of 4 1/2 storied building apart from the basement and mezzanine floor, vide order dated 3.2.2000, thereafter no permission has been granted for raising any construction from part of the 5th floor and upwards. It has further been submitted that though the standing appellate committee passed the order dated 5.5.2000 setting aside the order of the Commissioner, GMC dated 27.3.2000 rejecting the application seeking permission to raise construction of part of the 5th floor up to 8th floor, passing of such order is itself illegal in view of the admitted position of the fact that the road by the side of which the building is constructed is 38 ft. width and under the building bye-laws of the GMC the maximum allowable height is double of the width of the road, i.e., 76 ft., but in the instant case the standing appellate authority has allowed construction up to 93 ft. which contravens the provision of the bye-laws and, therefore, such order of the standing appellate committee has no legal force and cannot be the basis for making construction beyond 76 ft. allowable under the bye-laws. The learned Additional Advocate General has further submitted that the order of the standing appellate committee dated 5.5.2000 lost its force after the communication dated 29.5.2002 was issued by the GMC by which the petitioners were asked to comply with certain conditions before granting any permission for construction of the building from part of the 5th floor and above and the said position has been accepted by the petitioners and not challenged before any court of law.
Referring to the communication dated 29.5.2002 issued by the Commissioner, GMC, the learned Additional Advocate General has submitted that it is evident from the said communication that the Administrator-cum-Minister, Gauhati Development Department has considered the appeal filed by the petitioners under certain conditions and in the event of fulfilling such conditions the permission would be granted. In the instant case, according to the learned Counsel, no authority including GMC authority approves any structural plan from part of the 5th floor and above and, therefore, there is no question of making any construction and any such construction made is unauthorized and liable to be demolished under the provision of the 1985 Act.
The learned Additional Advocate General has submitted that it is evident from the record of W.P.(C) 5018 of 2002 that though the order of status quo was passed by the learned Single Judge on 12.8.2002 directing to maintain status quo and in spite, of the further order dated 20.9.2002 passed in the said writ petition directing to stop any further construction, the petitioners have proceed with the construction by defying the orders passed by the learned Single Judge. Mr. Chowdhury refuting the submission that by order dated 12.8.2002 the writ petitioners were not prevented from making, any construction and the order dated 20.9.2002 preventing the petitioners therein from making any construction, was for ten days, has submitted that the order of status quo having been passed the parties to the proceeding have to maintain the status quo in all respect and the petitioners cannot take advantage of the order dated 20.9.2002, by which order the case was directed to be listed after ten days and meanwhile the writ petitioners were prevented from making any construction. The petitioners according to the learned Counsel knew that such preventive order continued in spite of the expiry of ten days and, therefore, on 30.9.2002 the Misc. case No. 1371 of 2002 was filed in the said writ petition by the petitioners prayed not to extend the interim order and if such order was valid for ten days there was no necessity of filing such application. In any case according to the learned Additional Advocate General even if there was no interim order passed restraining the petitioners from making any construction, any construction made by the petitioner was at his own risk in view of the fact that the municipal authority by order dated 31.7.2002 directed the petitioners to stop construction and the writ petitioners challenge of such order as well as the order of demolition in the writ proceedings is pending.
The learned Additional Advocate General further submits that any construction made in violation of the approved plan as well as the building bye-laws is liable to be demolished and accordingly the Chief Executive Officer, GMDA passed the order u/s 88 of the 1985 Act for demolition of the unauthorized construction from part of the 5th floor and above, that too after issuing notice and giving the petitioners reasonable opportunity to show cause. Referring to the order dated 30.5.2006 passed by the GMDA u/s 88 of the 1985 Act the learned Additional Advocate General has submitted that the notices were issued on 2.2.2001 as well as order of demolition was issued on 5.9.2001 and 18.2.2002. That apart by notice dated 4.10.2002 the inspection was conducted by the GMDA. It has further contended that the petitioners knew that they have no permission to make any construction beyond 4 1/2 floor which is also apparent from the reply submitted by the writ petitioner Sri Pramod Kr. Singhania on 18.2.2002 to the notice of demolition of even date issued by the GMDA as the said petitioner in the said reply has informed the GMDA that he has made the construction after obtaining permission from GMC vide order dated 3.2.2000, which relates to the permission up to part of the 5th floor only. In any case, according to the learned Additional Advocate General, the construction of part of the 5th floor and above is illegal and unauthorized, there being no approved structural plan.
Referring to the submission made by the learned senior counsel for the petitioners regarding the violation of natural justice and non-compliance of the requirement of issuance of notice before passing the order u/s 88 of the 1985 Act, the learned Additional Advocate General has submitted that the petitioners at least after receipt of the order dated 18.2.2002 came to know that there, is a proceeding relating to the unauthorized construction of the building and the requirement of Section 88 of the 1985 Act being not to take any action of demolition without prior intimation to the owner of the building, such requirement was fulfilled at least on 18.2.2002 and the petitioners having replied that there was no unauthorized construction and the construction was made pursuant to the permission granted by GMC authority on 3.2.2000 knew about the allegation that the petitioners were making unauthorized construction, therefore, it is not the requirement of law that each of the deviations have to be brought to the notice of the petitioner before issuing the order for demolition u/s 88 of the 1985 Act more so when the allegation is that the construction from part of 5th floor and above is unauthorized, being without any permission and without any approved plan. In any case according to the learned Additional Advocate General no prejudice was caused to the petitioners, as they knew about such proceeding of demolition of unauthorized construction, as well as the grounds thereof.
The learned Additional Advocate General, therefore, submits that the petitioners construction being unauthorized beyond 4 1/2 floors, the authority has rightly issued the order of demolition and the GMC authority rightly asked the petitioner vide order dated 31.7.2002 to stop construction. Mr. Chowdhury, learned Additional Advocate General countering the argument of the learned senior counsel for the petitioner regarding the assessment of building to tax has submitted that the assessment of the tax will not legalise any unauthorized construction made by the petitioners. Even if a building is assessed to tax under the provision of 1971 Act, such building can be directed to be demolished if the same is unauthorized being without permission and/or contrary to the bye-laws. It has further been submitted by the Mr. Chowdhury that the communication dated 29.5.2002 issued by the Commissioner, GMC reflecting the consideration by the Administrator, cannot be treated as the permission under the bye-laws. The petitioners cannot make construction beyond 76 ft. in height and compounding of such violation of the bye-laws is not permissible under the provision contained in Appendix III of the bye-law. The Additional Advocate General has further contended that the Appendix III of the building bye-laws for GMC provides the compoundable and non-compoundable items under the bye-law and it is evident from the said provision that addition of extra floor is non compoundable items meaning thereby that the same cannot be regularize by imposing any penalty for violation of any provision of the master plan/zoning plan regulations and bye-laws and, therefore, in any case the maximum allowable height of the building in that locality being 76 ft., no floor above that height can be allowed and, therefore, the order passed by the standing appellate committee as well as by the GMC even if the communication dated 29.5.2002 is taken as the order, being in contravention of the provision of the bye-laws as well as Appendix III to the said bye-laws, cannot be the basis for invoking the equitable jurisdiction of this court under Article 226 of the Constitution of India.
The learned Additional Advocate. General on the point of requirement of issuance of notice to the owner/occupier of the building before passing the order u/s 88 of the 1985 Act, has submitted that the notices have in fact been issued, which is apparent from the pleadings of the writ petitioners in the writ petitions including the annexures appended thereto and one of the occupier of the building being a party in the present writ petition, it cannot be said that the occupiers do not know about the demolition proceeding initiated by the authorities concerned and, therefore, even if the notices to all the occupiers of the building are not issued, no prejudice has been caused to them. Moreover, the Priyanka Estate International (P.) Ltd. being the builder who is one of the writ petitioners in two writ petitions and is responsible for the construction of the building was served with the notices.
Dr. N.K. Singh, the learned Counsel appearing on behalf of the GMDA adopting the argument of the learned Additional Advocate General has also submitted that the question which is involved in the present case is whether the petitioners have made any unauthorized construction and/or any construction which is not permissible under the law. The petitioners/builder according to the learned Counsel could not even produce the plan approved by the GMC authority to show that the structural plan for construction of building beyond 4 1/2 floor was approved so as to enable the petitioners to make such construction. Under the bye-laws no constructions can be made without any approved plan for that purpose, submitted by the learned Counsel. Dr. Singh, has further submitted that the GMDA has rightly issued the order u/s 88 on 30.5.2006 as the petitioners have made the construction without any permission from the concerned authority and without there being any plan approved for such construction. Dr. Singh referring to the record of the GMDA has further contended that the GMDA vide communication dated 21.2.2002 informed the petitioners to furnish all copies of approved drawings as well as building permission in support of their letter dated 18.2.2002 and accordingly the petitioner on 21.2.2002 and 2.4.2002 submitted the building permission dated 3.3.2000 issued by the GMC authority as well as the drawings approved by the GMC authority for construction up to 4 1/2 floors of the building apart from the basement and mezzanine floor but could not submit any permission or approved drawing/plan approved by any competent authority for construction of, building beyond 4 1/2 floors. Therefore, according to the learned Counsel, the petitioners knew that no plan/ drawing has been approved by the GMC authority for construction of the building beyond 4 1/2 floors. Therefore, the GMDA has rightly issued the order of demolition u/s 88 of 1985 Act, is the submission of the learned Counsel.
Mr. Samariah, learned Counsel appearing on behalf of the GMC authority has also adopted the submissions made by the learned Additional Advocate General and has further contended that as the petitioners were making construction without any plan approved for that purpose beyond 4 1/2 floor, stop construction notice was issued on 31.7.2002, but in spite of such notice the petitioners proceeded with the construction. The petitioners even before this court have failed to produce the approved plan to show that such plan for construction beyond 4 1/2 floors have been approved by any of the competent authority. Therefore, according to the learned Counsel, the stop construction notice was rightly issued. Referring to the order dated 29.5.2002, the learned Counsel has further submitted that the communication issued by the Commissioner, GMC authority cannot be treated as permission for construction as it is evident from the said communication that certain conditions were yet to be fulfilled for granting permission and such permission can be granted only after fulfilling those conditions. It has further been submitted that issuance no objection certificate by the GMC authority thereby granting permission to make construction alone is not sufficient unless the construction/structural plan is approved by such authority and in the instant case no such construction/structural plan for making construction beyond 4 1/2 floors have been approved as required under the building bye-laws and hence any construction made beyond 4 1/2 floor by the petitioners/builder is unauthorized construction and liable to be demolished, which was rightly ordered by the GMDA by issuing the order dated 30.5.2006 u/s 88 of the 1985 Act.
Mr. Das, learned senior counsel appearing on behalf of the petitioner in W.P.(C) No. 5146 of 2002, opposing such construction made by the petitioners/builder in the other writ petitions has also submitted that unless construction/structural plan is approved by the competent authority, no construction can be made and any construction without such approved plan is unauthorized construction. According to the learned senior counsel in the present case the petitioners could not place any document before this court to show that such plan for construction of the building beyond 4 1/2 floor was approved by any of the competent authority enabling the petitioners to make such construction and, therefore, the GMDA has rightly issued the order of demolition dated 30.5.2006 and the GMC authority as back as on 31.7.2002 rightly directed the petitioners to stop construction in the absence of any approved plan. Mr. Das, learned senior counsel has further submitted that no permission has been granted for construction beyond the 4 1/2 floor and, therefore, the petitioner cannot take shelter by the order dated 29.5.2002, even if the same amounts to giving permission and also the order passed by the standing appellate committee dated 5.5.2000, the same being contrary to the building bye-laws, under which the maximum height of the construction allowable in the side of the existing road of 38 ft. is 76 ft., but the standing appellate committee has allowed the petitioners to make construction up to 93 ft., which, on the face of it, is contrary to the building bye-laws of the GMC.
The learned Counsel in support of his contention has placed reliance on M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu and Others, ; Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority and Ors. reported in (2003)10SCC445, Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, , Mahendra Baburao Mahadik and Others Vs. Subhash Krishna Kanitkar and Others, .
(C) Relevant Legal Provisions:
The 1971 Act was enacted for constituting a Municipal Corporation for the city of Guwahati, which received the assent of the President of India on 1st January, 1973, making provision, inter alia, for formulation of development schemes in accordance with the bye-laws made in that behalf, which includes making provision for construction and re-construction of building and also provision for building control, i.e., prohibition of erection or re-erection of building without permission, submission of application for erection and re-erection of a building, refusal or grant of permission for such erection or re-erection, the period for which such permission remains valid, intimation about completion of the building and power to require removal or alteration of work not in conformity with bye-laws or executed notwithstanding rejection of plan. The said Act also empowers the GMC to make bye-laws relating to the building. The Act apart from others also provides for supersession of the GMC and its effect as well as the appeals before the standing committee against any order that may be passed by the Commissioner refusing to grant permission to construct or re-construct a building.
Chapter XXVI of Part VI of 1971 Act deals with, framing of development schemes for building as well as building control. Section 327 of the Act prohibits any person from erecting or re-erecting any building without written permission from the corporation. Section 328 provides for submission of an application by a person interested to erect or re-erect a building to the corporation for approval of the site together with a site plan with land title document, ground plan, elevation and sections of the building, specification of the work and also containing such particulars as may be required by bye-laws made in that behalf. Section 329 empowers the Commissioner to refuse such permission and to disapprove the site on the ground formulated in Section 330. Section 331 provides for the grounds on which permission to erect or re-erect the building can be refused by the corporation. Section 332 empowers the Commissioner to direct modification of the sanctioned plan of the building before its completion, Section 333 stipulates the period for which such permission for erection or re-erection of any building shall remain in force and Section 337 empowers the Commissioner to require removal or alteration of the work not in conformity with bye-laws or executed notwithstanding rejection of plan, etc.
The provisions of the 1971 Act relevant for the purpose of the present writ petitions are quoted below:
Prohibition of erection or re-erection of buildings without permission. - No person shall, -
(i) erect or re-erect any building ; or
(ii) commence to erect or re-erect any building ; or
(iii) make any material external alteration to any existing buildings ;
(iv) construct or re-construct any projecting portion of a building which the Commissioner is empowered to require to be set back or is empowered to give permission to construct or reconstruct -
(a) unless the Commissioner or the Engineer so empowered has either by an order in writing granted permission or has failed to intimate within the prescribed period his refusal to grant such permission; or
(b) after expiry of one year from the date of the said permission or such longer period as the Commissioner may allow:
Provided that nothing in this section shall apply to any work, addition or alteration which the Corporation may by bye-laws declare to be exempted.
Notice of building. - (1) Every person who intends to erect or re-erect a building shall submit to the Corporation, -
(a) an application in writing for approval of the site, together with a site plan of the land, and documents of title and, in the case of land which is the property of, the Government or of the Corporation a certified copy of the documents authorizing him to occupy the land and if so required by the Commissioner, the original document of documents; and
(b) an application in writing for : permission to execute the work together with a ground plan elevations and sections of the building and a specification of the work.
(2) Every plan of any building to be constructed wholly or partly of masonry submitted under Sub-section (1), shall, in token of its having been prepared by him or under his supervision, bear the signature of a surveyor, licensed or duly approved by the Corporation.
(3) Every document submitted under Sub-section (1) shall be prepared in such manner and shall contain such particulars as may be required by bye-laws made in this behalf.
(4) Nothing herein contained shall require a person to comply with they provisions of Clause (b) of sub-section, (1) of this section until such time as the site has been approved by the Commissioner or such person as he may direct:
Provided that an application shall be disposed of within 60 days from the date of receipt.
Commission to refuse erection or re-erection of building. - The Commissioner on the advice of the Engineer shall refuse to sanction the erection or re-erection of any building which is in contravention of any rule or bye-law made under the provision of this Act.
Grounds on which site or proposed building may be disapproved. -The Commissioner on the advice of Engineer may refuse to approve the site on which it is intended to erect or re-erect any building on all or any rule or bye-law made under the provision of this Act.
(a) that the erection or re-erection of the proposed building on such site would be in contravention of a development scheme u/s 322 or of any other provision of this Act or of any other enactment for the time being in force ; or
(b) that the site is in a portion of the city in which the position, and direction, of the streets have not been determined, and that the building which it is proposed to erect on such site will, in the opinion of the Commissioner obstruct or interfere with the construction in future of suitable streets in such portion of the city or the drainage, water supply or ventilation thereof:
Provided that any person to whom permission to erect or re-erect a building on such a site has been refused may, by a written notice to the Commissioner, require that the position and direction of the future street in the vicinity of his intended building be forthwith laid down and determined, and if such requisition be not complied with within one year from the date thereof may subject to all other provisions of this Act applicable thereto, proceed with the erection of his building; or
(c) that the site has been reclaimed or used as a place for depositing sewage, offensive matter or rubbish or the carcasses of dead animals or is otherwise insanitary or dangerous to health ; or
(d) when the site is in a portion of the city for which a development scheme has not been sanctioned by the Corporation and that the building which it is proposed to erect or re-erect on such site will, manner to be communicated in writing to the applicant, with the contemplated development scheme:
Provided that any person to whom permission to erect or re-erect a building on such a site has been refused may by written notice to the Commissioner, require that the preparation of a development schemed, for the portion of the city in which the said site is situated be proceeded with as early as circumstances may permit and if the applicant is not informed in writing within twelve months of the date of the requisition that the Corporation has sanctioned the said scheme, he may subject to all the other provisions of this Act applicable thereto, proceed with the erection or re-erection of the building in respect of which the application was made.
Ground on which permission to erect or re-erect building may be refused. - (1) The Commissioner shall not grant permission to erect or re-erect any building unless and until the Engineer has approved of the site thereof on an application u/s 328.
(2) The Commissioner may refuse permission to erect or re-erect any building, -
(a) if the plan and specifications submitted with the application show that such building is not in accordance with a development scheme sanctioned u/s 324 or with any provision of this Act, or any rule or bye-law made thereunder or any provision of any law for the time being in force ; or
(b) if in his opinion the erection or re-erection of such building would be a nuisance or injurious to the inhabitants of the neighbourhood or to the public ; or
(c) unless and until any plans, specification or particulars called for by him are supplied ; or
(d) if the proposed building would be an encroachment upon Government or municipal land; or
(e) if the site of such building does not abut on a street or a projected street or if there is no access to such building from any such street by a passage or pathway appertaining to such site.
Power to require removal or alternation or work not in conformity with bye-laws or executed notwithstanding rejection of plan, etc. - (1) If any building is erected or re-erected in contravention of any development scheme mentioned u/s 322 or any building bye-laws made u/s 416(1)D or without plans having been deposited, or notwithstanding the rejection of plans, or otherwise than in accordance with any requirements subject to which the Commissioner passed the plans, the Commissioner may, without prejudice to his right of taking proceedings in a Court of law for such contravention, by notice to the owner either require him to pull down or remove the work of if he so elects, to effect such alternation therein as may be necessary to make it comply with the said scheme or bye-laws or other requirements specified in the police.
(2) If any case in which the erection or re-erection of any building has been commenced or is being carried on unlawfully as mentioned in Sub-section (1), the Commissioner may, by a written notice, require the building operation to be discontinued from the date of service of the notice.
(3) If a person to whom a notice has been given under the foregoing provisions of this section fails to comply with the notice before expiry of seven days, the Commissioner may pull down or remove the work in question, or effect such alterations therein as he deems necessary, and may recover from him the expenses reasonably incurred by the Commissioner in so doing and such dues shall be recoverable as arrears of municipal tax.
(4) Where plans were approved, it shall not be open to the Commissioner to give such a notice on the ground that the building contravenes any scheme or bye-laws as the case may be or does not comply with his requirements under this Part.
Chapter XXVIII of the 1971 Act deals with framing of Rules, Regulations and bye-laws by the Corporation as well as by the State'' Government. Section 416 empowers the GMC to formulate different bye-laws including the bye-laws relating to the building.
Section 425 of 1971 Act empowers the State Government dissolve the corporation for a period not exceeding six months on fulfilling the conditions stipulated therein. Sub-section (2) of Section 425 provides the consequences of such supersession. Sub-section (3) of the said section provides that the person or persons appointed by the Government under Clause (b) of Sub-section (2) shall be designated as administrator or council of administrators and shall, where the Government so directs, receive from the Municipal Fund such payment for his or their services as the Government may, from time to time determine.
Section 438 of the 1971 Act provides for appeal, from the order passed by the Commissioner including the order refusing to grant permission to construct or re-construct a building, to the standing committee of the corporation. Sub-section (3) of the Section 438 of the Act also empowers the State Government to call for the records of any matter from the corporation at any time and to pass such order as may be deemed necessary after examination of such records.
The Corporation pursuant to the power conferred by 1971 Act formulated building bye-laws for the GMC, which came into effect in the year 1998. Sub-clause (53) of Clause 2 of the said bye-laws defines "sanctioned plan" which means the set of drawings and statement submitted under the provision of the bye-laws in connection with a building and sanctioned by a competent authority. Chapter II of the said bye-laws lays down the procedure regarding construction of building. Clause V provides for giving a notice in writing to the Commissioner, GMC by every person who intends to erect or re-erect or make materials alteration in any place or part thereof within the jurisdiction of the GMC area accompanied by the plans and conforming to the requirements of Sections 327 and 328 of the Act. Sub-clause (3) of the said Clause 5 of the bye-laws requires that such notice must be accompanied by the site plan giving details about site over which erection or re-erection is proposed, the building plan, details of the plans of the building and elevation and sections accurately drawn and containing the complete layout of the plan, plan for all floors with the statement of the covered area of each floor, accessory buildings, basement plan and indicating the sizes of rooms, etc., service plan, specification as well as the ownership document. Clause 13 of the said bye-laws empowers the authority to direct stop construction if at any stage it is found that the construction is not made according to the sanctioned plan or in violation of the any provision of the bye-laws. Clause 17 provides for giving the completion certificate by the owner after completion of the construction in terms of the plan approves by the competent authority. Sub-clause (a) of Clause 17 provides for issuance of the occupancy certificate by the authority of GMC. Clause 17 of the said bye-laws provides what would be the maximum height of the building and also the additional requirement.
The relevant clauses of the said bye-laws are quoted below:
Notice. - (1) Every person, who intends to erect or re-erect or make material alteration in any place in a building or part thereof, within the jurisdiction of Guwahati Municipal Corporation area, shall give notice in writing to the Commissioner, GMC of his said intention in the form prescribed from time to time by the GMC, and such notice shall be accompanied by the plans and conforming to the requirements of Sections 327 and 328 of GMC Act, 1969 in triplicate on blue or white prints. One copy shall be retained in the office of the authority for record after issue of permission and the other two shall be returned to the applicant (one copy for submission to local body). In the event of authority returning the plans after some observations they will have to comply with in accordance with the building bye-laws.
(2) Exempted to Government. -
****** ******* ******** (3) Plans accompanying notice. - The following plans shall accompany the notice:
(a) Site plans. - The site plan drawn to the minimum scale of 1: 200 and shall show -
(i) the boundaries of the site with dimensions and of any contiguous land belonging to the owner;
(ii) the position of the site in relation to neighbouring streets with name of the street on which the building is situated ;
(iii) the position of the building and all other buildings (if any) which the applicant intends to erect upon his land in relation to -
(1) the boundaries of the site and in case where the site has been partitioned, the boundaries of the portion owned by the, applicant and also of the portions owned by other owners of that compact plot;
(2) the means of access from an existing street to the building;
(3) space to be left around the building to secure free circulation of air, admission of light ands across for scavenging purpose, etc. ;
(iv) scale with north line ;
(v) plot area, plinth area, each floor area ;
(vi) location, name and width of each adjacent road or lane ;
(vii) such other particulars as may be prescribed by the authority.
(b) Building plan. - The detailed plans of the building and elevation and sections sent with the notice shall be accurately drawn to a scale of 1 : 100. Adequate arrangement for proper drainage shall also be made. The plan shall include -
(i) complete layout plan of the area or areas showing location and width of all street dimensions, sizes and uses of all the plots ;
(ii) plans of all floors together with a statement of he covered area of each floor, accessory building and basement plan. Such drawings shall fairly indicate the size of rooms, size of windows and ventilators, size of door openings and stair runs ;
(iii) location of drains, sewers, public utility services, electric lines ;
(iv) exact location of essential services such as W. C. sink, bath, etc. ;
(v) proposed and existing works should be clearly indicated in different colours (other than red) or in marking ;
(vi) sectional drawings showing clearly the sizes of footings thickness of basement walls, if any, all roof slabs and floor slabs, ceiling heights and parapet height with their materials. The section shall indicate the drainage and slope of the roof. At least one section shall be taken through the staircase ;
(vii) details of served privies (if any); (viii) all street elevation;
(ix) scale with north line.
(c) Service Plan. - Details of private water supply, sewerage disposal system and detail of building services, where required by authority, shall be made available on a scale not less than 1: 200.
(d) Specification. - General specification of the proposed constructions, giving type of grade of materials to be used in the form given in Appendix duly signed by the R.T.P of Architect /Engineer/Structural Engineer, as the case may be; and counter-signed by the applicant shall accompany the notice.
(e) Supervision. - The notice shall be further accompanied by a certificate of supervision in the prescribed form given in Appendix by the R.T.P. In the event of the said R.T.P. ceasing to be employed for the work, the further development work stand suspended till a new R.T. is appointed and his certificate of supervision along with a certificate for the work already done (either from the previous one or the present) accepted by the authority. Additional documents, NOC that may be required other than those specified herein are given in subsequent chapters for various types of building.
(f) Any other statement as may be required by the authority.
(g) Ownership document. - Titleship document to justify the ownership of land. In case land is not owned by applicant, lease deed or a NOC for allowing applicant for construction in the form of affidavit.
***** ****** ******* ****** 13. Construction not according to the plan. - Should the Authority detemine at any stage that the construction is not proceeding according to the sanctioned plan or is in violation of any of the provisions of these bye-laws, it shall notify to the permit holder and all further construction shall be stopped until correction has been effected and approved by the Authority.
If the permit holder fails to comply with the requirements at any stage of construction, the Authority is empowered to cancel the building permit issued.
****** ****** ****** ****** 37. 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) the side and rear set backs shall be increased by 0.3 m. for every 1.5 m. additional height of the building in addition to the set backs already prescribed in this rule subject to a maximum of 4.5 m. side set back and 6 m. rear set back.
(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 ;
(iii) Residential building should not be cut by 45 degree angle line drowns from the opposite edge of road. However, building up to two storeys is exempted of it.
(a) For the purpose of building height calculation, width of the road shall be taken as existing road width.
(b) Lift machine room, stair case, parapet height shall not be included in the height of the building.
(c) For a building constructed on stilt with provisions of ground level parking floor or semi-basement parking floor, the height of the building will be calculated by omitting the height of the parking floor up to a maximum of 2.4 m. for the purpose of building height subject to provision of exclusive parking in the ground floor.
(d) Building above the height of 15.82 m. shall require necessary clearance from State Fire Service.
(e) For a building with a height above 12 m. or above 4 floors including the ground floor, at least one lift shall be made available.
(f) For building in the vicinity of the aerodromes, the maximum height of such buildings shall be subject to conformity with the height limitations prescribed by the Civil Aviation Authorities from time to time and to this effect a No Objection Certificate issued by that authority shall be submitted by the applicant alongwith plans to the sanctioning authority.
(g) Height exceptions. - The following apartment structures shall not be included in the height of building:
(i) roof tanks and their supports not exceeding 1.5 m. in height;
(ii) ventilationing, air conditioning and lift-rooms and similar service equipments, stair-covered with roof up to 3 m. in height, chimney and parapet wall and architectural features not exceeding 1.5 m. in height.
Appendix III of the said bye-laws of GMC provides for imposition of penalties for violation of the provision of master plan/zoning plan regulations and bye-laws and also stipulates which of the violation are compoundable and which are non-compoundable. For better appreciation Appendix III of the bye-laws is re-produced below:
Appendix III
PENALTIES TO BE LEVIED FOR VIOLATIONS OF PROVISION OF MASTER PLAN/ZONING PLAN REGULATIONS AND BYE-LAWS.
(i) All provisions of Bye-laws except items given below shall not be compounded/regularized and shall have to be rectified by alteration/ demolition at the risk and cost of owner.
Compoundable items:
(1) Coverage - Maximum of 15% (2) F.A.R. - Maximum of 10% (3) Set Back - Upto 2''-6" (4) Open Space - Maximum 10% reduction (5) Total Height of Building. - 1.5% Non-compoundable items: (1) Use of building (2) Addition of extra floor (3) Parking Norms
Note. - All cases of regularization given in t