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GAUHATI HIGH COURT
S.N.Phukan, J.
Guwahati Municipal Karmi Sangha Represented By Its Organising Secreatary Sri Prafulla Baruah -Appellant
Versus
Guwahati Metropolitan Development Authority and Ors. -Respondent
Civil Rule No. 2632 of 1992
Decided On : 14-10-1993
GUWAHATI MUNICIPAL CORPORATION - GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY - BUILDING PERMISSION - POWER TO GRANT - REPEAL OF PROVISIONS OF GUWAHATI MUNICIPAL CORPORATION ACT, 1971 - INTERPRETATION OF RELEVANT PROVISIONS OF GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY ACT, 1985 - WHETHER INCONSISTENT WITH PROVISIONS OF GUWAHATI MUNICIPAL CORPORATION ACT, 1971 - WHETHER PROVISIONS OF GUWAHATI MUNICIPAL CORPORATION ACT, 1971 STAND REPEALED BY IMPLICATION - WHETHER GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY ACT, 1985 EMPOWERS GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY TO GRANT PERMISSION FOR CONSTRUCTION OR RE-CONSTRUCTION OF ANY BUILDING TO THE EXCLUSION OF GUWAHATI MUNICIPAL CORPORATION.
Fact of the Case:
The petitioner, Guwahati Municipal Karmi Sangha, filed a writ petition under Article 226 of the Constitution challenging the executive order issued by the Additional Chief Secretary to the Government of Assam on 21st November, 1992, which entrusted the Guwahati Metropolitan Development Authority (GMDA) as the sole authority for granting permission for construction of buildings, to the exclusion of the Guwahati Municipal Corporation (GMC). The petitioner contended that the GMDA was not empowered to issue building permission under the provisions of the GMDA Act, 1985, and that the power to grant building permission was vested with the GMC under the Gauhati Municipal Corporation Act, 1971.
Finding of the Court:
The Court held that the GMDA Act, 1985, was enacted for the purpose of planned development of the Guwahati Metropolitan Area and that the GMDA had limited powers to ensure that no construction or sub-division of land took place in violation of the Master Plan and Zoning Regulations. The Court further held that the GMC had the authority to grant permission for construction or re-construction of buildings, but that it was required to obtain the approval of the GMDA before doing so. The Court found that the impugned order, which empowered only the GMDA to grant permission for construction or re-erection of any building, was bad in law and that both the GMDA Act, 1985, and the GMC Act, 1971, could hold the field together.
Issues: 1. Whether the GMDA was empowered to issue building permission under the provisions of the GMDA Act, 1985? 2. Whether the provisions of the GMC Act, 1971, regarding the grant of building permission were repealed by implication by the GMDA Act, 1985? 3. Whether the impugned order, which empowered only the GMDA to grant permission for construction or re-erection of any building, was valid.
Ratio Decidendi: 1. The GMDA had limited powers to ensure that no construction or sub-division of land took place in violation of the Master Plan and Zoning Regulations. 2. The GMC had the authority to grant permission for construction or re-construction of buildings, but that it was required to obtain the approval of the GMDA before doing so. 3. The impugned order, which empowered only the GMDA to grant permission for construction or re-erection of any building, was bad in law and that both the GMDA Act, 1985, and the GMC Act, 1971, could hold the field together.
Final Decision: The Court allowed the petition and set aside the impugned order. The Court held that the GMDA could not grant permission for construction or re-construction of any building to the exclusion of the GMC and that both the GMDA Act, 1985, and the GMC Act, 1971, could hold the field together.
2. The dispute is regarding whether the Guwahati Metropolitan Development Authority constituted under the Guwahati Metropolitan Development Authority Act, 1985 can be entrusted as the sole authority for granting permission for construction of building by an executive order issued by the Additional Chief Secretary to the Govt. of Assam on 21st November, 1992 vide Annexure D to the writ pettition, to the exclusion of the Guwahati Municipal Corporation which is a body constituted under the Gauhati Municipal Corporation Act, 1971. By the above order dated 21st November, 1992, the Commissioner of Gauhati Municipal Corporation was informed that in the first meeting of the Guwahati Metropolitan Development Authority, for short, GMDA, it was decided that with the constitution of Guwahati Metropolitan Development Authority all building permissions within the jurisdiction of GMDA will be given only by that authority and Guwahati Municipal Corporation, for short GMC, will stop performing the function. From the said impugned order it appears that it was also decide that necessary staff will be transferred from GMC to GMDA. It was also agreed to that with effect from 31st of March, 1992 GMC will stop issuing building permission and in the meantime all pending cases will be disposed of. It appears from the said impugned order that the Chief Executive Officer, GMDA also assured the Additional Chief Secretary that necessary technical competence and staff for disposing of the applications in expeditious manner are already available with GMDA and there will be no dislocation of work.
3. According to writ petitioner, GMDA is not empowered to issue building permission under the provisions of GMDA Act, 1985, for short the Act of 1985 and the power given to GMDA under that Act only relates to broader issues relating to general development of lands and other development schemes. Petitioner has averred that for granting building permission powers have been vested with GMC under Gauhati Municipal Corporation Act, 197^ for short the Act of 1971. In this connection reference has been made to section 327 to section 347 of the said Act. Reference has also been made that though GMC was superceded by the State Govt. in 1981 till date no election has taken place and the Commissioner, GMC is only an executive head and under the provisions of the Act of 1971, he is not competent to transfer any power granted by the Act in absence of Mayor and/ or elected representatives and the Standing Committee of the Corporation.
4. As stated above, according to petitioner GMDA was constituted with the main object to formulate schemes and basic structure for the Master Plan and to scheme out plan by 'Zonal Division' of the various parts of the city. Petitioner has alleged that it is illegal and unconstitutional on the part of GMDA to take away the power and/or acquire power which is not vested under the Act on GMDA by back-door policy. The petitioner has also challenged the provisions of the Act of 1985. Petitioner apprehends that if the impugned order is given effect to, large number of employees of GMC will be thrown out of jobs and in addition, revenue of GMC will also be affected. Hence, the present petition praying for appropriate writ for quashing the provisions of the Act of 1985 and also the letters and Notifications dated 23.3.92 and 21.11.92, Annexures C and D to the writ petition.
5. A counter affidavit has been filed on behalf of GMDA by the Chi
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