Compliance with Building Bye Laws and the need for a consultative process involving stakeholders in construction projects.

Heard Mr. C.P. Sharma, learned counsel for the petitioner. Also heard Mr. S. Bora, learned Standing Counsel, Gauhati Municipal Corporation (GMC), appearing for respondent nos. 2, 3 and 4 as well Mrs. M. Hazarika, learned senior counsel assisted by Ms. S. Khound, learned counsel appearing for respondent no. 5 (GMDA).

2. The brief facts of the case, as apparent from the record, is that the writ petitioner is a society registered under the Assam Cooperative Societies Act, 2007 and its members are engaged in the wholesale fish business. The members of the petitioner society were earlier running their wholesale fish business from the Paltanbazar area which was commonly known as “Paltanbazar Wholesale Market”. However, since the market at Palatanbazar had become very congested and was lacking the basic amenities, a decision was taken by the authorities to shift the wholesale fish market to the outskirt of the city of Guwahati. Accordingly, the State Government of Assam had allotted a plot of land measuring 3 Bighas located at Betkuchi, Beltola to the respondent no. 2 for shifting the wholesale fish market whereafter, the respondent no. 2 had constructed a wholesale fish market therein consisting of 4 (four) sheds having 58 (fifty eight) stalls. The stalls were then allotted to the members of the petitioner society who are presently operating their wholesale fish business there-from. According to the petitioner, the original construction plan had envisaged 50% vacant land within the market complex which was meant to be kept reserved for parking of vehicles, installation of Cold Storages and for other ancillary purposes. However, recently the respondent no. 2 has started additional construction of another 51 Nos. of new stalls in 5 (five) Assam Type sheds over the vacant land, thereby encroaching upon the land earlier reserved for parking of vehicles and also for construction of cold storage facility.

3. Mr. Sharma, learned counsel for the writ petitioner submits that the additional construction of 51 sheds is not only being made in utter violation of the Building Bye Laws, but the same, if permitted, will also cover nearly 90% of the land thereby leaving no space either for proper parking facility or for providing other essential amenities such as cold storage etc without which a whole sale fish market cannot function.

4. The respondent nos 2 and 3 have filed a joint counter-affidavit denying the case of the petitioner. In their affidavit, the respondent nos 2 and 3 have inter-alia stated that there was never any proposal for construction of a cold storage as claimed by the petitioner and therefore, the question of reserving space for the said purpose does not arise. It has also been stated that even after completing the additional constructions, the parking area that will be available inside the complex would be far in excess of what is required under the Building Bye laws.

5. On a scrutiny of the pleadings brought on record, it is seen that one of the allegations raised by the writ petitioner is to the effect that the respondent GMC authorities are proposing to make the construction of additional sheds in violation of the Building Bye-laws. With a view to obtain necessary clarification in the matter, this Court had passed an order dated 05/01/2017 directing the respondent no. 5 to clarify as to whether the construction plan was required to be approved in terms of the Building Bye-laws and if so, whether the proposed construction is being raised after obtaining necessary construction “NOC” from the competent authority. In compliance of the order of this court, the Town Planner of the GMDA had filed an affidavit on 06/02/2017. The statements made in paragraphs 3 and 4 of the said affidavit would be relevant and are extracted herein below for ready reference:-

“3. That under the provisions of New Revised Building Bye Laws for Guwahati Metropolitan Area, 2006 and the Guwahati Building Construction (Regulations) Bye Laws