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2022 Supreme(Gau) 608
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SANJAY KUMAR MEDHI, J.
Navarun Das, S/o. Bani Prakash Das And Anr - Appellants
Versus
The State Of Assam And 5 Ors - Respondents
WP(C) 805 of 2022, 6208 of 2021
Decided on : 12-09-2022
Advocate Appeared:
For the Appellant :Shri B.K. Das, Advocate
For the Respondents:Shri S. Bora, Shri N. Alam, Advocate.
Point of Law: Dispute relating to ownership are matters to be decided by the Civil Court and not by any Revenue court or authority which does not have such jurisdiction.
Headnote:
Constitution Of India, 1950 - Article 226 - Power Of High Court to issue Certain Writs - Complaint lodged by respondent before GMDA against petitioners primary issue was blocking ingress and egress of road which they have been using - Allegations of violation of building plan have also been made in the constructions made by petitioners - Whether said authority would have any jurisdiction to continue with stop construction order is issue which requires an answer - Matters connected with confirmation of right title and interest by way of adverse possession are matters which are to be decided only by a competent Civil Court and not by a Revenue Court. (Para 8)
Findings of the Court :
Issue which arises for determination in this two writ petitions is jurisdiction and authority of GMDA for continuing direction of stop construction in impugned order even after coming to a finding that there is no apparent violation of building permission and plan and also fact that issue which has arisen cannot be ascertained by authority - Statute holding field confers jurisdiction upon GMDA to adjudicate matters which involves violation of building plan/permission and any other provision of statute - Statute does not confer any jurisdiction to GMDA to decide any issue of rights, title, ownership etc - In fact in the impugned order there is a candid admission that claims and counter claims regarding passage way cannot be ascertained by authorities.
Result: Petitions allowed
JUDGMENT :
1. Heard Shri B.K. Das, learned counsel for the petitioners. Also heard Shri S. Bora, learned Standing Counsel for the GMC, GDD & GMDA whereas Shri N. Alam, learned counsel has appeared for the respondent no. 6 in both the cases.
2. Both the writ petitions arising out of the same cause of action, the same are taken up together for final disposal.
3. The issue started from a complaint lodged by the respondent no. 6 before the GMDA against the petitioners whereby the primary issue was blocking the ingress and egress of the road which they have been using. Allegations of violation of the building plan have also been made in the constructions made by the petitioners.
4. On such complaint, a Show Cause Notice was issued on 30.10.2021 to the petitioners to give them an opportunity to place their case on the aforesaid complaint. On 03.11.2021, the reply was submitted by the petitioners explaining that there was no violation of any building plan or permission and all the constructions were done in accordance with law. In the first writ petition, the initiation of the proceeding was the subject matter of challenge and during the pendency of the said writ petition, the GMDA had passed the final order on 21.01.2022 on the proceeding initiated vide a Show Cause Notice dated 30.10.2021. By the said order, the GMDA had come to a finding that there was no violation of the building plan or permission perse. However, the authority had noticed that there was an issue with regard to the road used by the respondent no. 6 which was apparently affected by the construction. The GMDA ultimately had directed that though the issue involved was not a matter of adjudication of the GMDA, the parties were given the liberty to move the appropriate legal forum for redressal of the issue of the access road and till such resolution is there, the order of stop construction issued earlier on 30.10.2021 shall continue.
5. It is the condition attached to the impugned order dated 21.01.2022 which is the ultimate matter of challenge and accordingly the second writ petition has been filed.
6. Shri Das, the learned counsel for the petitioners submits that without going to the entire facts of the case, the first writ petition was filed against the initiation of the proceedings and the order of stop construction dated 30.10.2021. However, the proceeding had culminated in the order dated 21.01.2022 passed by the CEO, GMDA wherein the GMDA had come to a finding that there is no apparent violation of the building plan or permission in the construction made by the petitioners. The learned counsel submits that once such conclusion has been arrived at, the GMDA did not have any further authority or jurisdiction to continue the stop construction order more so when the GMDA itself has admitted that such matters which are within the domain of an appropriate legal forum. Shri Das, the learned counsel has submitted that though the order is dated 21.01.2022, till date he is not aware of any civil suit being filed by the respondent no. 6 wherein there has to be an order of injunction for such legal restrain.
7. In support of his submission, the learned counsel for the petitioners has placed reliance upon the following case laws:-
1. Khanindra Hazarika vs. Rekha Saikia and Ors. (2008 4 GLR 122).
2. Nurul Haque vs. State of Assam and Ors. (2014 4 GLR 781).
8. In the case of Khanindra Hazarika (supra), this Court has held that matters connected with confirmation of right title and interest by way of adverse possession are matters which are to be decided only by a competent Civil Court and not by a Revenue Court.
9. In the case of Nurul Hoque (supra), an Hon’ble Division Bench of this Court has held that dispute relating to ownership are matters to be decided by the Civil Court and not by any Revenue court or authority which does not have such jurisdiction.
10. For ready reference, paragraph 9 of the judgment of the Hon’ble Division Bench passed in the case of Nurul Hoque (supra) is ext
