The main legal point established in the judgment is the interpretation of the definition of 'commerce' under Section 2(7) of the Guwahati Metropolitan Development Authority Act, 1985, and its application to the use of the building for running an educational institution.

B.K. Sharma, J.

1. The petitioner No. 1 a registered society under Societies Registration Act, 1860 and the petitioner No. 2 the owner of the building in question in which the college of the petitioner No. 1 is located are aggrieved by the decision of the authority, by which the petitioner No. 1 has been directed to vacate the educational institution from the building.

2. Aryabhatta Science Society is managing the Aryabhatta Junior Science College located in the building constructed by the petitioner No. 2. The petitioner No. 2 by her application dated 17.8.1999 had approached the Respondent Authority to accord permission for construction of a building of Ground Floor, 1st Floor and 2nd Floor over her plot of land situated near G.S. Road, Guwahati. The authority approved the building plan and accordingly the petitioner No. 2 was issued with the no objection certificate towards construction of the building. The building was constructed with the aid and assistance of the petitioner No. 1. On completion of the construction a Deed of Gift No. 7380/2001 was executed by which, the petitioner No. 2 donated the said land and building in favour of the petitioner No. 1. Since then, the petitioner No. 1 has been running the college.

3. The college was granted temporary recognition by the Assam Higher Secondary Education Council by its order dated 7.4.2003. Such recognition has been granted upon inspection of the infrastructures of the college. The Council has also notified the college as Examination Centre and the examinations are being held in the college from 2004.

4. By Annexure-6 notice dated 8.6.2006, the authority directed the college authority to stop unapproved construction in respect of 3rd and 4th floor of the building. In response to the notice, the petitioner submitted its reply. Thereafter, another notice dated 30.6.2006 (Annexure-8) was issued, interalia contending that the building had been used as college building instead of commercial building as approved earlier. The notice was followed by Annexure-9 notice dated 11.7.2006 to the same effect. As regards the unauthorized construction of the floors, the petitioner was directed to demolish the same.

5. Pursuant to the said notices, the building was partly demolished (upper two floors). Thereafter by Annexure-11 notice dated 10.10.2007, the petitioner No. 2 was directed to vacate the unauthorized use of the college on remaining floors. It was at that stage, the writ petition was filed. According to the petitioners, since the authority has already carried out the operation of demolition in respect of the floors in question, there is no further question of shifting of the college from the building. It is their contention that the building plan having clearly indicated the purpose, the authority cannot now threaten the petitioners of ceiling the building in the event of failure to shift the college. It has been contended that the permission for commercial purpose also includes educational institution purpose.

6. The respondents have filed their affidavit-in-opposition denying the contentions raised in the writ petition. According to them the permission for commercial purpose and educational purpose are different inasmuch as the criteria of building permission for both the categories are different as provided in the Building Bye Laws. It has been stated in the affidavit that the petitioners have contravened the building bye laws in making use of the building for the purpose other than the one for which the building permission was granted. As regards the unauthorized construction, it has been contended that the first show cause notice was issued primarily for (a) unauthorized construction of 3rd and 4th floors; (b) construction of staircase on the front set-back and (c) cantilever projection over all set-backs.

7. I have heard Mr. A. M. Mazumdar, learned Sr. Counsel assisted by Mr. N. N. Jha, learned Counsel for the petitioners as well as Mrs. M. Hazarika, learned Sr. Counsel a