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2016 Supreme(Gau) 396
IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
A.K. GOSWAMI, J.
Sri Ritesh Kumar Tibrewala, Son of Sri Jugal Kishore Tibrewala - Petitioner
Versus
The State of Assam, represented by the Deputy Secretary to the Government of Assam, Urban Development Department & Ors. - Respondents
Writ Petition (C) No. 4022 of 2015
Decided On : 31-08-2016
For the Petitioner: Mr. M.K. Choudhury, Mr. A. Pervez
For the Respondents: Mr. B.J. Ghosh, Mr. J. Handique, Mr. K.N. Choudhury, Mr. A. Tiwari
Headnote:
Criminal Procedure Code - Section 107 – Civil Procedure Code - Section 148-A - Assam Municipal Act, 1956 - Section 53A (1), 37 – Land Law - Execution of a registered gift deed - Stop construction of the building - Petitioner as projected in the writ petition, inter alia, is that the petitioner is an owner of a plot of land measuring 17½ lechas (2520 sq. ft.), by virtue of execution of a registered gift deed by his father and the respondent No. 7 owns a plot of land and neighbour in the east-west direction of the land of the petitioner - He received a copy of a caveat filed under Section 148-A CPC lodged by respondent No. 7 - After the caveat was lodged, the respondent No. 7 started development works in the land owned by the respondent No. 7 and smelling a rat, he made enquiries with the respondent No. 7 specifically with regard to the building permission granted. However, the respondent No. 7 declined to show the site plan and the No Objection Certificate (NOC). As the petitioner found that the respondent No. 7 was not following the Municipal norms in the southern and western boundaries, he had written a letter to respondent No. 2 with a request to enquire into the matter and to stop construction of the building. Based on that letter, the respondent No. 2 made an enquiry and in the enquiry it was found that there was deviation from the sanctioned plan in the side set back and rear set back as the set back maintained by the petitioner was 1.35 metre and 2.60 metre instead of 1.5 metre and 3 metre, respectively – Held, regard to the scope of adjudication in this writ petition, this Court does not consider it appropriate to go into the question raised that the Office Memorandum is not binding on the urban local bodies. In the singular facts of this case, this Court is of the considered opinion that it will be appropriate for this Court to dispose of the writ petition with the following directions - Respondent No. 2 will forward the application of the respondent No. 7 for building permission along with all enclosures together with copy of the provisional NOC issued to the respondent No. 7 to the Deputy Director/Assistant Director of Town and Country Planning Department within a period of five days from the date of receipt of a certified copy of this order - (ii) The Deputy Director/Assistant Director of Town and Country Planning Department will examine the documents and send back the same within a period of four days from the date of receipt of the documents from the respondent No. 2 along with his comments as to whether the provisional NOC is conforming to the requirements under Guideline/Notification in force - He shall specifically name the Guideline/Notification which was in force and which he had taken into account - (iii) The respondent No. 2 will forthwith inform the petitioner and the respondent No. 7 the decision of the Deputy Director/Assistant Director of Town and Country Planning Department (iv) If the provisional NOC is held to be correctly issued by the Deputy Director/Assistant Director of Town and Country Planning Department at Tezpur, the respondent No. 2 will cause a notice to be served upon the petitioner and the respondent No. 7 within a period of five days from the date of receipt of the documents from the Deputy Director/Assistant Director of Town and Country Planning Department at Tezpur for the purpose of measurement of the land and building to find out as to whether there is any deviation in construction of the building - (v) If any deviation is found on measurement, appropriate action will be taken by the Board, which may also include compounding and regularization of the deviation in accordance with law - (vi) The respondent No. 7 shall not resume construction of the building till the directions above are complied with. Needless to say, further construction of the building by the respondent No. 7 will be depended upon the outcome of the directions given above. As basement and first floor of the building were already completed by the respondent No. 7, the authorities will scrupulously observe the time-frame fixed by the Court while complying with the above directions - Writ petition is disposed
Heard Mr. M.K. Choudhury, learned senior counsel for the petitioner. Also heard Mr. B.J. Ghosh, learned State counsel appearing for the respondent Nos. 1, 3 to 6, Mr. J. Handique, learned counsel appearing for the respondent No. 2 and Mr. K.N. Choudhury, learned senior counsel appearing for the respondent No. 7.
2. The case of the petitioner as projected in the writ petition, inter alia, is that the petitioner is an owner of a plot of land measuring 17½ lechas (2520 sq. ft.), by virtue of execution of a registered gift deed by his father in the year 1986, and the respondent No. 7 owns a plot of land measuring 1 katha 13 lechas (441.210 sq. metre) and is a neighbour in the east-west direction of the land of the petitioner. He received a copy of a caveat dated 2.5.2015 filed under Section 148-A CPC lodged by respondent No. 7. After the caveat was lodged, the respondent No. 7 started development works in the land owned by the respondent No. 7 and smelling a rat, he made enquiries with the respondent No. 7 specifically with regard to the building permission granted. However, the respondent No. 7 declined to show the site plan and the No Objection Certificate (NOC). As the petitioner found that the respondent No. 7 was not following the Municipal norms in the southern and western boundaries, he had written a letter dated 04.06.2015 to the respondent No. 2 with a request to enquire into the matter and to stop construction of the building. Based on that letter, the respondent No. 2 made an enquiry and in the enquiry it was found that there was deviation from the sanctioned plan in the side set back and rear set back as the set back maintained by the petitioner was 1.35 metre and 2.60 metre instead of 1.5 metre and 3 metre, respectively. A notice was issued by the respondent No. 2 on 16.6.2015 to remove the irregularities within 7 days but without removing the same, the respondent No. 7 continued with the construction work and the respondent No. 2 remained as a silent spectator and only as an eye-wash, again issued a letter dated 23.6.2015 directing the respondent No. 7 to comply with the letter dated 16.6.2015. In the meantime, the petitioner could obtain the NOC issued for construction of the building which was dated 15.2.2014 and issued under “Clause 1 of Section 53A (1) of the Assam Municipal Act, 1956, as amended in 2011” and, to his bewilderment, found that the NOC was issued on the same day of submitting application, ostensibly to by-pass and defeat the provisions of proposed Assam Notified Urban Areas (Other Than Guwahati) Building Rules, 2014 (for short, ‘the 2014 Rules’). In the writ petition, details of changes which would have been required had the NOC been granted under the 2014 Rules are also delineated. It is pleaded that the NOC was issued in gross violation of the Office Memorandum dated 21.11.2013 issued by the Deputy Secretary to the Government of Assam, Urban Areas Development Department on the subject of building permission. The illegalities committed by the respondent No. 2 while issuing the NOC are highlighted in paragraph 11. It is also pleaded that there being no provision for parking of vehicles, same will result in major parking problem in the locality. Besides, no NOC was obtained by the respondent No. 7 from State Fire Services which is a condition precedent for enabling a person to obtain NOC under Municipal laws. No environmental clearance is also obtained by the respondent No. 7 and, therefore, for the illegalities committed by the respondent No. 7, the building constructed by the respondent No. 7 based on an NOC issued in violation of law, is liable to be demolished. But the respondents had turned a blind eye to the illegal construction and thus have abdicated the statutory powers. It is also stated that a proceeding, under Section 107 Cr.P.C., had also not yielded the desired result.
3. The respondent No. 2 filed an affidavit stating that by the time the writ petitioner filed his compl
