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2018 Supreme(Gau) 1758
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SUMAN SHYAM, J.
Smt. Kalpana paul and anr. – Appellant
Versus
Appellate Authority And Secretary, Urban Development Deptt, and Ors – Respondents
WP(C) 2375 of 2011
Decided on : 09-01-2018
Advocate Appeared:
For the Appellant :MS.M JAIN Advocate
For the Respondent: MR.S C KEYAL
Point of Law: Section 13(4) provides that if permission is not refused on ground of contravention of proposal contained in plaint and unless permission has been refused within a period of one month from receipt of application or such other information as may be called for by authorities under sub-Section (3), it shall be presumed that permission has been given.
Headnote:
Town and Country Planning Act, 1959 - Section 13(4), (3) - Demolition of construction work - Grant construction permission - Petitioners assailing order passed by respondent No. 2 directing demolition of construction work undertaken by petitioners holding same as unauthorized – Petitioners cannot claim to have any permission for undertaking construction in question and until such time, a valid construction permission is obtained by them, construction cannot be held to be legitimate - Para 10.
Finding of the Court:
There is a dispute raised by one of co-sharer in land even application was submitted by petitioners - Question of granting permission without examining claim of co-sharer cannot arise - Hence, present is not a case falling under provision of Section 13(4) of Town and Country Planning Act where deeming clause will apply - Petitioners cannot claim to have any permission for undertaking construction in question and until such time, a valid construction permission is obtained by them, construction cannot be held to be legitimate - Since the respondent Nos. 2 and 3 no longer have any role to play in matter of granting construction permission or to demolish unauthorized construction within Municipal area, any further discussion on validity of impugned orders would be of mere academic value in this case and therefore, would be un-necessary – Court dispose of petition by granting liberty to petitioner to make a fresh application seeking construction permission before competent authority.
Result: Petition disposed of.
JUDGMENT :
Heard Mr. G.N. Sahewalla, learned Sr. counsel appearing for the writ petitioners. have also heard Mr. B.K. Purkayastha, learned counsel representing respondent Nos. 2 and 3 as well as Mr. T.C. Chutia, learned Addl. Sr. Govt. Advocate appearing for the respondent No. 1. None appears for the respondent No. 4 and 5.
2. The petitioners have approached this Court assailing the order dated 28-01-2011 passed by the Silchar Development Authority, i.e. respondent No. 2 directing demolition of the construction work undertaken by the petitioners holding the same as unauthorized as well as the subsequent order dated 24-08-2011 passed by the appellate authority rejecting the appeal filed by the petitioners against the order dated 28-01-2011.
3. The case of the petitioners as projected through the pleadings, is that the petitioners are the owners in possession in respect of a plot of land situated in Silchar Town in the district of Cachar located within the Silchar Municipal area. For the purpose of carrying on with their business activities, the petitioners wanted to construct some shop rooms/ permanent structure over the plot of land. Accordingly, they had submitted an application before the respondent No. 2 on 05-02-2010 seeking permission to carry out such construction by enclosing copy of the drawing as well as the requisite fee payable under the rules.
4. Since Section 13(4) of the Town and Country Planning Act provides that if the permission is not refused on the ground of contravention of the proposal contained in the plaint and unless the permission has been refused within a period of one month from the receipt of the application or such other information as may be called for by the authorities under sub-Section (3), it shall be presumed that the permission has been given. Therefore, the petitioners understood that the permission applied for had been given to them since they had not received any adverse communication within a period of one months from the date of submission of the application. Under the circumstances, the petitioners had commenced construction activities and completed the work of 1st floor slab casting and the brick walls. When the work for 2nd floor roof casting was under progress, the respondent No. 3 had issued a notice dated 20-03-2010 directing the petitioners to stop construction on the ground that the construction undertaken by them was in-contravention of the construction permission.
5. On receipt of the show cause notice, the petitioners had appeared and submitted their objection/ reply to the notice but notwithstanding the same, the respondent No. 3 had issued the impugned order dated 28-01-2011 rejecting the submission made by the petitioners and directing that the unauthorized portion of the construction be demolished within 07 days from the date of receipt of the order.
6. Aggrieved by the order dated 12-01-2011, the petitioner had preferred an appeal which was also rejected by the appellate authority vide order dated 28-04-2011.
7. Referring to the materials available on record Mr. G.N. Sahewalla, learned Sr. counsel for the petitioner submits that the action of the respondents are apparently based on a complaint made by the respondent No. 4, who claims to be a co-sharer of the land but the civil court has not passed any order of injunction in the suit filed by the respondent No. 4 restraining construction. That apart, submits Mr. Sahewalla, the petitioner had maintained the setback of 03 mtrs. on the rear side and .91 mtr. on the sides but violation of setback on the sides is of compoundable nature. Therefore, the authorities ought to have considered the aforesaid aspect of the matter before issuing the order of demolition. As such, submits Mr. Sahewalla, the complaint made by the respondent No. 5, who is a neighbor of the petitioner, alleging violation of the setback could not have been the basis for the respondent No. 3 to direct demolition of the construction made by the petitioner.
8. Refuting
