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Judgment
Heard Mr. G.N. Sahewalla, learned Sr. counsel appearing for the writ petitioners. I have also heard Mr. B.K. Purkayastha, learned counsel
representing respondent Nos. 2 and 3 as well as Mr. T.C. Chutia, learned Addl. Sr. Govt. Advocate appearing for the respondent No. 1. None
appears for the respondent No. 4 and 5.
The petitioners have approached this Court assailing the order dated 28-01-2011 passed by the Silchar Development Authority, i.e. respondent
No. 2 directing demolition of the construction work undertaken by the petitioners holding the same as unauthorized as well as the subsequent order
dated 24-08-2011 passed by the appellate authority rejecting the appeal filed by the petitioners against the order dated 28-01-2011.
The case of the petitioners as projected through the pleadings, is that the petitioners are the owners in possession in respect of a plot of land
situated in Silchar Town in the district of Cachar located within the Silchar Municipal area. For the purpose of carrying on with their business
activities, the petitioners wanted to construct some shop rooms/ permanent structure over the plot of land. Accordingly, they had submitted an
application before the respondent No. 2 on 05-02-2010 seeking permission to carry out such construction by enclosing copy of the drawing as
well as the requisite fee payable under the rules.
Since Section 13(4) of the Town and Country Planning Act provides that if the permission is not refused on the ground of contravention of the
proposal contained in the plaint and unless the permission has been refused within a period of one month from the receipt of the application or such
other information as may be called for by the authorities under sub-Section (3), it shall be presumed that the permission has been given. Therefore,
the petitioners understood that the permission applied for had been given to them since they had not received any adverse communication within a
period of one months from the date of submission of the application. Under the circumstances, the petitioners had commenced construction
activities and completed the work of 1st floor slab casting and the brick walls. When the work for 2nd floor roof casting was under progress, the
respondent No. 3 had issued a notice dated 20-03-2010 directing the petitioners to stop construction on the ground that the construction
undertaken by them was in-contravention of the construction permission.
On receipt of the show cause notice, the petitioners had appeared and submitted their objection/ reply to the notice but notwithstanding the
same, the respondent No. 3 had issued the impugned order dated 28-01-2011 rejecting the submission made by the petitioners and directing that
the unauthorized portion of the construction be demolished within 07 days from the date of receipt of the order.
Aggrieved by the order dated 12-01-2011, the petitioner had preferred an appeal which was also rejected by the appellate authority vide order
dated 28-04-2011.
Referring to the materials available on record Mr. G.N. Sahewalla, learned Sr. counsel for the petitioner submits that the action of the
respondents are apparently based on a complaint made by the respondent No. 4, who claims to be a co-sharer of the land but the civil court has
not passed any order of injunction in the suit filed by the respondent No. 4 restraining construction. That apart, submits Mr. Sahewalla, the
petitioner had maintained the setback of 03 mtrs. on the rear side and .91 mtr. on the sides but violation of setback on the sides is of
compoundable nature. Therefore, the authorities ought to have considered the aforesaid aspect of the matter before issuing the order of demolition.
As such, submits Mr. Sahewalla, the complaint made by the respondent No. 5, who is a neighbor of the petitioner, alleging violation of the setback
could not have been the basis for the respondent No. 3 to direct demolition of the construction made by the petitioner.
Refuting the argument made by the petitioner''s counsel, Mr. B.K. Purkayastha, learned counsel representing respondent Nos. 2 and 3 contends
that the petitioner herein had evidently commenced construction even before application for building permission dated 05- 02-2010 was submitted
by them. Mr. Purkayastha submits that the respondent No. 4 being co-sharer of the land had submitted a compliant on 06-01-2010 before the
respondent No. 3 and taking note of the said complaint, a notice dated 25-01-2010 was issued to the writ petitioner No. 2 calling upon him to
stop construction work and to furnish explanation as regards the allegations made therein. Therefore, it is apparent that there was a bonafide
dispute regarding the validity of the construction carried out by the petitioner even before the application seeking permission to carry out
construction was submitted by the petitioners. As such, Section 13(4) of the Town and Country Planning Act would not have any application in the
facts and circumstances of the present case. Mr. Purkayastha, however, fairly submits that at present it is the Silchar Municipal Board which is the
authority competent to consider and grant an application seeking building permission falling within the Silchar Municipal area and the respondent
Nos. 2 and 3 do not have any authority or jurisdiction to entertain such an application.
It is not in dispute that the respondent No. 4 had instituted a civil suit before the court of competent jurisdiction claiming share in the land over
which the construction in question is being carried out. Although. Mr. Sahewalla has contended that there is no order of injunction issued by the
civil court restraining further construction yet, I find force in the argument of Mr. Purkayastha that when a dispute is subjudice before the civil court
involving rights over the immovable property, municipal/ development authorities would normally refrain from intervening in the matter unless
dispute is finally resolved in the civil court.
From the materials brought on record I find that there is a dispute raised by one of the co-sharer in the land even before the application dated
05-02-2010 was submitted by the petitioners. If that be so, the question of granting permission without examining the claim of the co-sharer cannot
arise. Hence, the present is not a case falling under provision of Section 13(4) of the Town and Country Planning Act where the deeming clause
will apply. As such, the petitioners cannot claim to have any permission for undertaking the construction in question and until such time, a valid
construction permission is obtained by them, the construction cannot be held to be legitimate. Be that as it may, since the respondent Nos. 2 and 3
no longer have any role to play in the matter of granting construction permission or to demolish unauthorized construction within Municipal area,
any further discussion on the validity of the impugned orders dated 28-01-2011 and 24-08-2011 would be of mere academic value in this case
and therefore, would be un-necessary.
Taking note of the facts and circumstances of the case and the submissions made by the learned counsel for the parties, I dispose of this writ
petition by granting liberty to the petitioner to make a fresh application seeking construction permission before the competent authority, viz. Silchar
Municipal Board. If such an application is made by the petitioners, the same may be considered in accordance with law, having due regard to the
facts and circumstances of the case. With the above observation this writ petition stands disposed of.