Unauthorized construction without permission and non-compoundable deviations must be demolished, while compoundable deviations may be considered for regularization.

B.P. Katakey, J.

1. The petitioner by the present writ petition has challenged the notice dated 28.7.2006 issued by the Commissioner, Guwahati Municipal Corporation asking her to show cause within 30 days as to why unauthorized construction/deviation mentioned in the said notice should not be demolished: The case of the petitioner is that she is the owner of the land, over which the said building has been constructed pursuant to the no objection certificate issued by the Corporation for construction of the ground as well as first and second floor. According to the petitioner though, third floor has been constructed without there being any approved plan and the deviation mentioned in the said notice dated 28.7.2006, both being not in violation of the building bye law of the corporation, such unauthorized construction /deviation from the approved plan ought to have been regularised. According to the petitioner necessary direction therefore to be issued to regularise such unauthorized construction and deviation, by setting aside the impugned notice dated 28.7.2006.

2. We have heard Mr. Talukdar, learned Counsel for the petitioner as well as Mr. Samaria, learned Counsel appearing on behalf of the Corporation.

3. Mr. Talukdar, learned Counsel for the petitioner has submitted that the building permission for construction of the ground, first and second floor was granted by the Corporation vide order dated 14.12.1990 and thereafter the permission for construction of the third floor was granted to her husband and accordingly the third floor was also constructed. It has further been submitted that the said fact was brought to the notice of the corporation in the reply submitted by the petitioner to the impugned notice dated 28.7.2006, but the corporation in spite of submission of such show cause reply did not withdraw the notice. Mr. Talukdar has further submitted that even if there is no permission granted by the Corporation for the purpose of construction of the third floor, the building having been constructed over the land belonging to the petitioner, the said construction being not in violation of building bye-law and the said third floor having been assessed to tax by the Corporation, the Corporation cannot, issue notice of demolition as has been done in the instant case, as the Corporation is estopped from issuing such notice. Regarding the construction made deviating from the approved plan, the learned Counsel has submitted that such deviation being within the compoundable limit under the bye law, the Corporation is bound to compound such violation for which the petitioner is ready to pay any amount that may be necessary to be paid under the building bye laws.

4. Mr. Samaria, learned Counsel appearing on behalf of the Corporation relying on the affidavit-in-opposition, filed, has submitted that the permission for construction of the building was granted for ground as well as first and second floor and no permission for construction of third floor was ever granted, which is apparent from the approved plan annexed to the writ petition. It has further been submitted that apart from unauthorized construction of the third floor, certain other deviations were bound in respect of the building, however, some of such deviations are compoundable and some non-compoundable under the provision of the building bye laws of the Corporation. Mr. Samaria, therefore, submits that there is no illegality in issuing the impugned notice dated 28.7.2006.

5. Though the petitioner has contended that the permission for construction of the third floor of the building was granted by the Corporation, the petitioner could produce only the building permission relating to the ground, first and second, floor together with the approved plan. To ascertain as to whether any building permission for construction of the third floor was granted, the Corporation was asked to file the affidavit in that regard and consequently the Joint Commissioner of the Corporation