Point of Law: Any construction made in violation of the construction permission/norms/Rules and Regulations would be subject to further orders that may be passed in the present proceedings.

JUDGMENT :

The instant writ petition has been filed by the petitioners challenging the building permission issued vide NOC No.GPL/BP/16/120/27012016/104/1479 dated 28.10.2016 granted in favour of the respondent Nos.3 to 5.

2. From a perusal of the writ petition, it transpires that a suit was filed by the predecessor-in-interest of the petitioners against the respondent Nos.3, 4 & 5 along with one Smti. Golapi Talukdar. The said suit was registered and numbered as Title Suit No.316/2014. It appears from the record that that a Deed of Compromise was entered into on 31.03.2015 between the predecessor-in-interest of the petitioners with the respondent Nos.3, 4 & 5 along with two others. Although there are various Clauses in the Deed of Compromise, but relevant to take note of Clause Nos.1 & 2 which are reproduced herein under:-

1. That the SECOND PARTIES do hereby agree that they will provide a road/path over the SCHEDULE-B land measuring 14 feet in breath and 123.5 feet in length on the southern boundary of the SCHEDULE-B land and which is specifically described as SCHEDULED land and shown in Map enclosed with this Compromise Deed and coloured with blue colour.

2. That the SCHEDULE-D land will be a common road/path for both the parties hereto and both the parties shall never claim any right, title and interest over the SCHEDULE-D road/path or raise any type of construction over the SCHEDULE-D road/path, except right of users.

3. To the said Deed of Compromise, there is a map. The said Deed of Compromise was subsequently made a decree of the Court on the basis of a joint application filed by the parties in Title Suit No.316/2014. The said compromise decree was passed on 31.03.2015.

4. It further appears from the records that the respondent No.3, 4 & 5 obtained a building permission from the Gauhati Municipal Corporation (GMC) Authority on 28.10.2016 and along with the building permission, there is also an approved building plan. The petitioners herein, subsequently on the basis of an application under RTI Act, 2005, came to learn that in the approved building plan, the common path which was agreed to in the Deed of Compromise was not made a part of the approved building plan, and as such, had submitted a complaint to the GMC. On the basis of the said complaint so made, the Commissioner, GMC issued a notice under Section 338 of the Gauhati Municipal Corporation Act, 1971 stating inter-alia that the permission for the RCC building, i.e. BF+GF+4th floor was accorded vide NOC No.GPL/BP/16/120/27012016/ 104/1479 dated 28.10.2016. It was mentioned that there was a road within the land of the plot from eastern side to the western side which was not shown in the site plan which amounts to material misrepresentation of facts, and as such, the respondent Nos.3, 4 & 5 were asked to show cause within seven days as to why the said permission accorded should not be revoked as empowered under Section 338 of the GMC Act of 1971 on the ground of material misrepresentation of facts.

5. It is the case of the petitioners that although the Commissioner, GMC had issued show cause notice on 01.02.2018, but the GMC Authorities thereupon did not follow it up and it is under such circumstances, the petitioners have approached this Court for cancellation/revoking of the GMC building permission so accorded to the respondent Nos.3, 4 & 5.

6. It appears from the record that this Court had issued notice on 05.10.2020. In the said order, this Court had observed that any construction made in violation of the construction permission/norms/Rules and Regulations would be subject to further orders that may be passed in the present proceedings.

7. It further reveals from the records that the GMC Authorities had filed an affidavit-in- opposition on 21.01.2021 wherein at paragraph Nos.4, 5, 7 & 8, the GMC Authorities have only mentioned about issuance of the show cause notice on 01.02.2018. Surprisingly, the GMC Authorities are silent as to what action was taken pursuant to the