IMPORTANT POINT
Demolition orders under the GMDA Act must comply with principles of natural justice, including proper notice and opportunity for the affected party to be heard.

JUDGMENT :

Arun Dev Choudhury, J.

Heard Mr. SP Roy, learned counsel for the petitioner in WP(C) 2889/2011. Also heard Mr. S Bora, learned standing counsel for the GMDA and Ms. RD Mozumdar, learned counsel for the respondent No. 2 in WP(C) 2889/2011.

2. These two writ petitions are taken up together for final disposal as the subject matter are connected, contesting parties are same.

3. The brief facts and the subject dispute in each of the petitions are recorded hereinbelow:

4. WP(C) 2889/2011

(i) By filing WP(C) 2889/2011, the petitioner has challenged an order dated 12.05.2011 passed by the Chief Executive Officer, Gauhati Metropolitan Development Authority, Bhangagarh, Guwahati in exercise of power under Section 88 of the GMDA Act, 1985. The said order discloses that according to the respondent authorities, the petitioner has constructed his house over the Dag No. 489(O)/480/484/485 (N) patta No. 6 (O)/ 38 (N) of the revenue village of Maligaon Mouza Jalukbari, Guwahati beyond the terms of the NOC issued in favour of the petitioner for construction of such building. The order dated 12.05.2011 also reflects that notice under Section 87 of the GMDA Act, 1985 was served upon the petitioner to show cause.

(ii) Thereafter, the petitioner filed a representation before the Chief Executive Officer, GMDA on 27.05.2011, inter-alia, contending that the purported notice dated 23.03.2011 has not been served upon the petitioner or any of his family member and therefore, he did not have any scope to file any reply to the notice dated 23.03.2011. A further issue was raised in the writ petition that in terms of the Section 87(1) of the GMDA Act, a show cause notice is mandatory to be served, then only demolition can be made. It was also contended in the representation that as per Section 88(1) of the Act, no demolition order can be passed without giving reasonable opportunity to show cause to the affected party and accordingly, it was prayed that an opportunity of hearing should be granted to the petitioner.

(iii) Thereafter, when nothing was forthcoming, the petitioner approached this court by filing the present writ petition and this court under its order dated 08.06.2011 granted an interim protection to the petitioner as regards affecting the demolition in question.

(iv) Though the matter was pending since 2011, the GMDA authority has not filed any affidavit. An affidavit-in-opposition is filed by the respondent No. 2, who is the brother of the petitioner, who is the writ petitioner in WP(C) 948/2011.

5. WP(C) 948/2011

(i) For brevity, the petitioner in WP(C) 948/2011 is described as respondent No. 2 as he is the respondent No. 2 in WP(C) 2889/2011 and the word petitioner is used to describe the petitioner in WP(C) 2889/2011.

(ii) The case projected by the respondent No. 2 is that dispute between the petitioner and the respondent No. 2 was pending as regards the actual possession of the petitioner and his mother so far relating to the disputed land and that the respondent No. 2 requested the GMDA not to give any permission for construction to the petitioner. However, GMDA by ignoring the said application, gave permission to the petitioner for construction of building. Such action resulted in grabbing of land illegally by the petitioner, which actually belonged to all the legal heirs of late Jogabala Mazumdar, who is the mother of both the petitioner and the respondent No. 2.

(iii) Thereafter, an RTI application was filed before the GMDA by the respondent No. 2 and accordingly, the GMDA replied that no such permission was granted to the petitioner. The respondent No. 2 preferred WP(C) 948/2011 against the alleged construction carried out by the petitioner. However, according to the respondent No. 2 in the proceeding of WP(C) 948/2011, the GMDA took a stand that in fact permission for construction was given to the petitioner.

(iv) It is the case of the respondent No. 2 that the petitioner is not the sole owner and possessor of the land where the constru