Point of Law : The assessment of a building to tax cannot legalise an illegal and unauthorisedly constructed building. Assessment of tax cannot operate as estoppel against the statutory power conferred on the statutory authority relating to demolition of building. The Commissioner also considered the prayer of the petitioner for regularization of the construction but held that the same cannot be done in violation of the statutory provisions of law.

ORDER :

Prasanta Kumar Deka, J.

1. Heard Mr. S. Chauhan, learned counsel for the petitioner. Also heard Mr. B Goswami, learned Additional Advocate General for the respondent Nos. 1, 2, 5, 6 and 7, Ms. N Saikia, learned counsel for respondent No. 8 and Ms. K. Phukan, the learned State Counsel for the respondent Nos. 3 and 9.

2. This writ petition is against the order dated 18.05.2017 passed by the Commissioner, Guwahati Municipal Corporation, (GMC) in a representation submitted by the petitioner on 07.01.2017 before the Additional Chief Secretary to the Government of Assam, Guwahati Development Department which was subsequently forwarded to the Commissioner, Guwahati Municipal Corporation for necessary action. The private respondent No. 8 on 12.07.2016 made a specific complaint to the Commissioner, GMC that the petitioner had undertaken unauthorized construction over a plot of land covered by Dag No. 717, KP Patta No. 160 under village - Bormotoria in Beltola Mouza. On the basis of the said complaint, notice was issued to the petitioner directing him to produce the NOC and the approved plans in respect of the alleged unauthorized construction. Though the petitioner took time initially but finally on 15.09.2016 submitted his reply thereby stating his occupation over the land but, the petitioner failed to produce the NOC and the approved plans in respect of the alleged unauthorized construction.

3. The GMC authority being satisfied that the petitioner failed to produce any approved plans, a notice was issued to show cause as to why the unauthorized construction should not be demolished. In reply to the said notice, the petitioner took the stand that he had purchased the land on 05.01.1983. Over the said plot of land he initially constructed the thatched house inasmuch as the said land upon which he carried out construction was Government land and thereafter he developed the said house by erecting RCC posts and shutters. The said house had been assessed to property tax and connected with the electricity and also taken a trade license from the GMC to run his commercial activities. It was also stated in the said reply that he applied to the concerned authority for settlement of the land under his possession.

4. While passing the impugned order, the Commissioner, GMC accepted the admission of the petitioner and held that the construction he undertook was illegal as no permission was obtained from the GMC. It is also apparent from the impugned order dated 18.05.2017 that the GMC authority had verified the claim that the land over which the petitioner constructed the house is a Government land private land. As per the report to the Commissioner, GMC by the Circle Officer, Dispur Revenue Circle it was opined that the said land was a private land covered by Dag No. 717, KP Patta No. 160. Under Section 337 of the Gauhati Municipal Corporation Act, 1971, the Commissioner is authorized to issue a written notice against any illegal construction and its operation of construction to be discontinued from the date of service of notice and under Section 337(3) of the Act, the Commissioner has the jurisdiction to remove the work in question or such alteration as he deemed necessary.

5. In pursuance to the order dated 16.11.2020 of this court, Mr. Goswami had obtained necessary instruction. From the report of the Circle Officer, which was received by Zonal Engineer, GMC, leaving aside Dag Nos. 189 (O) and 717 (N) the rest of the land covered by Dag Nos. 190 (O), 174(O), 176 (O) are Government land and the former two are Kheraj Periodic patta land. An unregistered sale deed was also submitted to the GMC by the petitioner, Paritosh Das purportedly executed by the respondent No. 8 which shows that the land covered therein falls within Dag Nos. 189, 190, 174 and 176.

6. Ms. Saikia referring to an additional affidavit filed by the respondent No. 1 pointed out the field enquiry report in T.S. 22/2010 pending in the court of learned Munsif No. 2, Kamrup(M) at Gu