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2024 Supreme(Online)(GAU) 12144
HIGH COURT OF GAUHATI
MR. JUSTICE MANISH CHOUDHURY, J
BHARATI BARMAN AND 2 ORS. – Appellant
Versus
THE STATE OF ASSAM AND 9 ORS. – Respondent
WP(C) / 4697 / 2019
MR. S K DAS, MR R KARIM, MR D BARMAN, SC, G M D A, MR. N ALAM, GA, ASSAM
The GMDA is empowered to act against unauthorized constructions and must provide clarity on actions taken following its orders.
Headnote:(A) GMDA Act, 1985 - Sections 87 and 88 - Unauthorized construction - The respondent no. 4 was directed to demolish unauthorized boundary walls constructed without valid permission, failing which GMDA would proceed with demolition - The petitioner contended that no permission was obtained from Gaon Panchayat for construction, which was refuted by GMDA's oral submission. (Paras 2-6)
(B) Administrative action - The court noted that despite the order for demolition, no action had been taken by GMDA, requiring a further affidavit to clarify steps taken by the authority. (Paras 3, 7)
Facts of the case:
The petitioner challenged the unauthorized construction of boundary walls by respondent no. 4, asserting that no prior permission was sought from the Gaon Panchayat, which was supported by RTI findings.
Findings of Court:
The court required GMDA to provide an affidavit regarding the actions taken post-order for demolition.
Issues: The main issues were whether valid permission was obtained for construction and the inaction of GMDA following the demolition order.
Ratio Decidendi: The court emphasized the need for GMDA to act on its own orders and provide clarity on the steps taken concerning unauthorized construction.
Result: The case is to be listed after a week for further proceedings.
ORDER
Date : 21.10.2024 Heard Mr. D. Barman, learned counsel for the petitioner in person; Mr. P. Nayak, learned Standing Counsel, GMDA for the respondent nos. 2 & 3; and Mr. N. Alam, learned counsel for the respondent no. 4.
2. Mr. Barman has referred to the previous Orders dated 29.11.2023 and 21.12.2023 and also to the notice issued on 05.01.2024 under Section 87 of the GMDA Act, 1985 to the respondent no. 4 and an Order of even date passed by the Chief Executing Officer, GMDA in exercise of the powers under Section 88 of the GMDA Act, 1985.
3. From the Order dated 05.01.2024, it transpires that the construction of the boundary walls of the said plot of land had been made unauthorizedly without valid permission and in contravention of provisions of prevailing bye-laws and the GMDA Act, 1985 and directions were made to the respondent no. 4 to demolish the above construction within 10 days from the receipt of the Order failing which the GMDA would be free to proceed with the demolition of the unauthorized boundary walls on its own, without giving any further intimation, etc.
4. After passing of the same Order dated 05.01.2024, when the matter was listed on 23.04.2024, Mr. Nayak, learned Standing Counsel, GMDA was asked to apprise this Court as regards the steps taken by the authority after the Order dated 05.01.2024.
5. Mr. Nayak, learned Standing Counsel, GMDA has submitted that he has received oral instruction to the effect that prior to the subject-land had been brought under the purview of the GMDA Act, the petitioner side had obtained permission from the jurisdictional Gaon Panchayat for construction.
6. Such contention of Mr. Nayak is refuted by Mr. Barman, the petitioner-in-person by submitting that the petitioner’s side made an application under the Right to Information Act before the jurisdictional Gaon Panchayat to obtain information as to whether there was any application from the petitioner’s side at any earlier point of time seeking permission to construct and the jurisdictional Gaon Panchayat has informed that there was no application at any earlier point of time from the petitioner’s side for construction on the subject-land. Mr. Barman has submitted that he would like to bring the said facts by way of an affidavit.
7. In view of such fact situation and having regard to the fact that despite issuance of the Order dated 05.01.2024, no discernable action steps has been taken by the respondent GMDA Authorities, Mr. Nayak, shall file an additional affidavit as regards the steps taken, by the respondent GMDA Authorities during the period from 05.01.2024 till date within a period of one week from today.
8. List the case after a week on a date to be fixed by the office.
