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2009 Supreme(Gau) 37
IN THE HIGH COURT OF GAUHATI
Jasti Chelameswar and C.R. Sarma, JJ.
Kamrup Developers Pvt. Ltd.
Vs.
State of Assam and Ors.
W.P. (C) No. 1746 of 2005
Decided On: 20.01.2009
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: G.N. Sahewalla, Sr. Adv., S. Sanapati, Aslam, D. Senapati and N.A. Singh, Advs.
For Respondents/Defendant: D. Saikia, Standing Counsel, G.M.C., M. Hazarika, Sr. Adv. and A. Ajitsaria, SC, GMDA
The GMDA has the authority to supervise and monitor developmental schemes, including building construction, for the safety and welfare of the people in the metropolitan areas, and to take action for demolition of unauthorized buildings.
Headnote:
GMDA - Construction Dispute - GMDA Act, 1985, Section 107, 86, 88, Building Bye-Laws - The court discussed the provisions of the GMDA Act, 1985, particularly Sections 107, 86, and 88, as well as the Building Bye-Laws, and their implications on the construction dispute. The court emphasized the authority of the GMDA to supervise and monitor developmental schemes, including building construction, for the safety and welfare of the people in the metropolitan areas. The court also highlighted the power of the GMDA to take action for demolition of buildings constructed without due permission or in contravention of any conditions subject to which such permission was granted.
Fact of the Case:
The Petitioner constructed a building based on No Objection Certificates (NOCs) issued by the Guwahati Municipal Corporation. The Guwahati Metropolitan Development Authority (GMDA) issued a notice directing the Petitioner to demolish the building, alleging unauthorized construction and violation of building bye-laws.
Finding of the Court:
The court found that the Petitioner failed to produce relevant documents to substantiate the claim that the construction was consistent with the permission and approved drawings. The court upheld the authority of the GMDA to issue the demolition notice under Section 88 of the GMDA Act, 1985.
Issues: Unauthorized construction, Violation of Building Bye-Laws, Authority of GMDA
Ratio Decidendi: The court held that the GMDA had given sufficient opportunity to the Petitioner to produce relevant documents, but the Petitioner's failure to respond implied absence of such documents, justifying the issuance of the demolition notice.
Final Decision: The petition was dismissed, and the impugned notice dated 25.2.2005 was upheld as valid under the jurisdiction conferred by Section 88 of the GMDA Act, 1985.
J. Chelameswar, C.J.
1. The challenge in this writ petition is directed against the show cause notice No. GMDA/UC/302/04/2 dated 7.12.2004 and notice No. GMDA/UC/302/2004/8 dated 25.2.2005 issued by the Chief Executive Officer, Guwahati Metropolitan Development Authority (hereinafter referred to as 'the GMDA') directing the Petitioner M/s Kamrup Developer Company Pvt. Ltd. to demolish the basement plus 8 (eight) floors of the building in question constructed by the Petitioner Company at Ulubari, G.S. Road.
2. The facts, as stated in this writ petition, in brief, are as follows:
The Petitioner Company, a Company incorporated under the provisions of the Companies Act, 1956 having its registered office at Peace Enclave, Ulubari, Guwahati-7, undertook construction of a commercial complex over a plot of land covered by Dag No. 344/343 (282/384), Patta No. 2/54 (496.27) of village New Town, Ulubari, Mouza Ulubari, after obtaining a No Objection Certificate and approval of plan from the Guwahati Municipal Corporation (hereinafter referred to as 'the Corporation') vide No. GPL 32/3/98/82/228 dated 15.5.1999 for ground floor and first floor with basement parking. Subsequently, vide order No. GPL/32/6/98/13/133 dated 5.6.1998 permission was obtained from the GMC for construction of the 2nd, 3rd and 4th floors. There after, a third No Objection Certificate for construction upto 8th floor was obtained from the GMC vide No. GPL/32/22/98/22/641 dated 16.8.1999.
The GMDA vide Notice No. GMDA/GEN/MISC/4/99/11 dated 17.11.2004 issued under Section 107 of the Guwahati Metropolitan Development Authority Act, 1985, asked the Petitioner Company to submit copies of the Building Permission and approved drawings of the said construction within 7 (seven) days of the receipt of the said notice for verification. The Petitioner Company by their letters dated 6.6.1998 and dated 27.7.1998 (Annexures-7 and 8) informed the Chief Executive Officer, GMDA that the construction was undertaken as per the norms prescribed by the GMC.
On 7.12.2004 vide Notice No. GMDA/UC/302/4/2 issued under Section 86 of the GMDA Act (Annexure-9), the Petitioner Company was asked to discontinue further construction on the ground of failure of the Petitioner company to furnish the relevant documents as called upon and thereby asked the Petitioner Company to show cause as to why the construction should not be liable to be demolished under Section 88(1) of the GMDA Act.
3. The Town Planner of the GMDA, vide letter No. GMDA/BP/UC/302/2/6 dated 29.1.2005 informed the Petitioner Company that since they failed to furnish any drawing and NOC of the concerned building, 7.2.2005 was fixed for joint inspection of the construction and accordingly the Petitioner was directed to be present at the construction site along with approved plan and other relevant documents of the construction. Responding to the said notice, Shri Ashok Agarwal, one of the Directors of the Petitioner Company, vide letter dated 2.2.2005, informed the GMDA that due to marriage ceremony of his younger brother, scheduled to be held on 11.2.2005 at Tinsukia, all of their family members would be out of Guwahati with effect from 5th February, 2005 and as such requested to postpone the scheduled joint inspection. Thereafter, the Chief Executive Officer, GMDA in exercise of power under Section 88 of the GMDA Act, vide Order No. GMDA/UC/302/2004/8 dated 25.2.2005, issued notice to the Petitioner Company for demolition of the basement and the 8 (eight) floors of the construction in question on the ground of being unauthorised construction. The relevant portion of the notice dated 25.2.2005 reads as follows:
Whereas you were asked to submit the documents in support of your construction vide Notice No. GMDA/GEN/Misc/4/99/11 dated 17.11.04. You have failed to produce the same by the due date. A second notice was also issued to you vide this office letter No. GMDA/UC/302/4/2, dated 17.12.04 asking you to suspend the construction and
