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2009 Supreme(Gau) 38
IN THE HIGH COURT OF GAUHATI
Jasti Chelameswar, Iqbal Ahmed Ansari, JJ.
Mohim Bora and Ors. – Appellants
Vs.
Government of Assam and Ors. – Respondent
Decided On: 20.01.2009
The main legal point established in the judgment is that unauthorized constructions in violation of the approved plan and relevant provisions of the Zoning Regulations should not be permitted to survive, unless justified in the facts and attending circumstances of the case.
Headnote:
Illegal Constructions - Assam Town and Country Planning Act - Section 9 of the Zoning Regulations - 9.2.1, 9.2.2 - The court discussed the violations of the Building Bye-laws/Regulations published under the Assam Town and Country Planning Act and the provisions of Section 9 of the Zoning Regulations. It highlighted the distinction between non-compoundable and compoundable items of deviations and/or violations and emphasized that any construction in violation of the approved plan and/or relevant provisions of the Zoning Regulations should not be permitted to survive, unless justified in the facts and attending circumstances of the case. The court directed the authorities to ensure that no unauthorized construction takes place and to deal with unauthorized constructions in accordance with the law.
Fact of the Case:
The petitioners alleged illegal constructions in Nagaon Town in violation of the Building Bye-laws/Regulations under the Assam Town and Country Planning Act. The court took up the writ petition and directed the authorities to submit a comprehensive report on the allegations. The respondent, Dr. Mrinal Kumar Sharma, was directed to demolish unauthorized portions of the building constructed in violation of the Act.
Finding of the Court:
The court found that the constructions raised by Dr. Mrinal Kumar Sharma suffered from major deviations and violations, and directed the authorities to ensure that no unauthorized construction takes place and to deal with unauthorized constructions in accordance with the law.
Issues: The issues involved the alleged illegal constructions in Nagaon Town, violations of the Building Bye-laws/Regulations under the Assam Town and Country Planning Act, and the authority's response to the unauthorized constructions.
Ratio Decidendi: The court emphasized that any construction in violation of the approved plan and/or relevant provisions of the Zoning Regulations should not be permitted to survive, unless justified in the facts and attending circumstances of the case. It directed the authorities to ensure that no unauthorized construction takes place and to deal with unauthorized constructions in accordance with the law.
Final Decision: The court directed the authorities to not compound the deviations in the constructions raised by Dr. Mrinal Kumar Sharma unless permissible and warranted in the facts and attending circumstances of the case. It also directed the authorities to ascertain and deal with unauthorized constructions in accordance with the law and ensure that no unauthorized or illegal construction takes place within their territorial jurisdiction.
1. The material facts, which are not in dispute, may be set out thus:
(i) Three citizens of Nagaon Town, who stand impleaded as petitioners in this writ petition, addressed a letter, dated 27.2.2006, to the Chief Justice of this High Court alleging, inter alia, that illegal constructions, in violation of the Building Bye-laws/Regulations, published under the Assam Town and Country Planning Act, ('the Act'), were going on in and around Nagaon Town, but the authorities concerned had miserably failed to stop such illegal constructions; rather, they were conniving with the unscrupulous builders and letting the latter raise constructions in violation of law and, then, such illegal constructions were being regularized.
(ii) Based on the above letter, the present writ petition was taken up suo motu by this Court and by order, dated 23.3.2006, this Court issued notices to all the respondents and directed, in particular, respondent No. 4, namely, Director, Town and Country Planning, Assam, to submit a comprehensive report as regard the allegations made in the writ petition. By order, dated 23.3.2006, aforementioned, respondent No. 4 was further directed to issue, in turn, directions to all concerned to stop all illegal constructions in and around Nagaon Town.
(iii) Following the directions given by this Court by order, dated 23.3.2006, aforementioned, an order was passed, on 11.4.2006, by respondent No. 3, namely, Chairman, Nagaon Development Authority, against respondent No. 8, namely, Dr. Mrinal Kumar Sharma, specifying violations committed by him of the approved drawing and directing him to demolish, within a period of seven days from the date of receipt of the order, the unauthorized portions of the building constructed by him in violation of the provisions of the Act. The order, dated 11.4.2006 (annexure-B to the affidavit, dated 9.5.2006), filed by the respondent No. 4, specifies the following deviations from the approved drawing:
1. Front Setback:
Front Setback approved in the submitted Drawing is 5(five) Mtrs. But you constructed the building keeping front setback of 3.30 Mtrs. Thereby you have deviated the approved plan in regards of front set back by 1.70 Mtrs.
2. Side Setback:
On the South side setback maintained 0.30m/0.90m/1.00 Mtr./0.80m. The approved setback on this side is 1 Meter. Hence you have deviated from approved plan in regard of side setback on the south side by Maximum of 0.70 M. Projection on the south is unauthorized.
3. Rear Setback:
Approved Rear setback is 3 Mtr. You have maintained 0-0m/1.25m/1.15m. Thereby you have deviated from the approved Plan in regards Rear setback by maximum of 3.00 Mtr.
4. Stair case:
Positions of Stair cases as approved have been changed. One of the Stair case constructed partly over the rear setback. One Toilet block also constructed over the rear set back by encroaching the required rear set back.
5. Use of Rooms:
The building has been approved for shops. But you have constructed the building without constructing partition walls as approved. In your submitted Plan no use has been mentioned for the Halls/Rooms.
6. Basement:
Basement has been constructed illegally as there is no provision in the approved plan. Organised parking in the basement and position of ramp for entry/exit has not been shown in the revised plan.
The operative portion of the order reads as follows:
Therefore, Dr. Mrinal Kumar Sharma is directed to demolish the above mentioned un-authorised portion of the Building constructed in violation of the Assam Town and Country Planning Act and not as per approved drawing within 7(seven) Days of the receipt of this order failing which, Nagaon Development Authority will be free to proceed with the demolition of the unauthorized portion of the Building on its own without giving you any further intimation and expenses thereof shall be recovered from Dr. Mrinal Kumar Sharma.
(iv) Reacting to the order, dated 11.4.2006, passed by the respondent No. 3, Dr. Mrinal Kumar Sharma submitte
