The court emphasized the necessity of exhausting statutory remedies under the GMDA Act before pursuing a writ petition, particularly in cases involving disputed facts.

JUDGMENT & ORDER :

MANISH CHOUDHURY, J.

Heard Mr. W. Raja, learned counsel for the petitioner; Mr. P. Nayak, learned Standing Counsel, Guwahati Metropolitan Development Authority [GMDA] for the respondent nos. 1, 2, 3, 4 & 6; and Ms. S. Baruah, learned Junior Government Advocate, Assam for the respondent nos. 5 & 7.

2. In this writ petition under Article 226 of the Constitution of India, the petitioner has stated that the petitioner and her daughter [the respondent no. 8] purchased a plot of land measuring 1 Katha 5 Lessas, covered by Dag no. 278 & Patta no. 123, situate at Sahar – Bharalumukh Part-II, Mouza – Jalukbari, Guwahati Revenue Circle [‘the subject-plot’, for short] by way of a registered Sale Deed no. 4471 dated 10.11.1994. After the purchase, the subject-plot got mutated in the name of the petitioner and the respondent no. 1 jointly by an Order dated 24.03.1995 passed in Mutation Case no. 273/1994-1995 by the respondent no. 7. At the time of purchase of the subject-plot, there were one pre-existing RCC [G+1] building and one RCC Assam type house attached with the RCC building on the subject-plot.

3. The petitioner has further stated that there was no mention in the Sale Deed regarding the individual shares of the petitioner and the respondent no. 8. There was, however, a mutual settlement agreement dated 04.11.1999 between the petitioner and the respondent no. 8, which contained a condition of erecting a partition wall by the respondent no. 8 between the lands of the petitioner and the respondent no. 8.

4. The petitioner has stated that since the registration of the Sale Deed, the petitioner with her son has been staying in the pre-existing RCC [G+1] building and the respondent no. 8 was residing in the pre-existing RCC Assam type house. The petitioner has further stated that in February, 2019, the respondent no. 8 started demolishing the pre-existing RCC Assam type house to construct a new RCC building in its place. After demolishing the pre-existing Assam type house, the respondent no. 8 started laying foundation of a new multi-storied RCC building. The petitioner has alleged that in the process of demolishing the RCC Assam type house and laying the foundation of the new multi-storied RCC building, a common wall existing between the two houses started got due to not following the mandate of building construction like not leaving minimum side margins and by laying foundation of the posts of the new multi-storied RCC building underneath the pre-existing RCC building wherein the petitioner stays.

5. The petitioner has stated that highlighting the unauthorized nature of construction carried out by the respondent no. 8, the petitioner [i] lodged a First Information Report [FIR] before the Officer In-Charge, Bharalumukh Police Station on 03.07.2019; [ii] submitted a nos. of applications / complaints / reminders before the Commissioner / Associate Planner, Guwahati Municipal Corporation informing about the illegal construction carried out by the respondent no. 8; and [iii] submitted an application before the Chief Executive Officer, GMDA for demolition of the construction carried out by the respondent no. 8. The petitioner has further alleged that the respondent no. 8, without the knowledge of the petitioner, got the subject-plot partitioned by initiating a partition case and got a separate patta issued in her name. Having learnt about the partition and issuance of separate patta, the petitioner stated to have instituted a case, Misc. Case no. 29/2022 before the respondent no. 7 for annulment of the separate patta and cancellation of the order of partition. The petitioner has further alleged that the separate patta was issued without carrying out any demarcation process.

6. The petitioner has further contended that though a separate patta was obtained by the respondent no. 8 on 24.05.2010, the office of the respondent no. 3 had issued a No Objection Certificate [NOC] under Section 25 of the GMDA Act, 1945 for construction of t