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2022 Supreme(Online)(Gau) 637
Sudhanshu Dhulia, C, J, Soumitra Saikia, J
PARTHA PRATIM DAS – Appellant
Versus
The State of Assam – Respondent
WRIT PETITION (CIVIL) No.5388 of 2021
For the Appellants/Petitioners: Ms. SB Choudhury
For the Respondents:Mr. P Sarma, Additional Senior Government Advocate, Assam, Mr. S Dutta, Senior Advocate, Mr. KN Choudhury, Senior Advocate, Mr. D.J. Das
Unauthorized construction violating municipal laws cannot be compounded and must be demolished to uphold public safety.
Headnote:(A) Assam Municipal Act, 1956 - Sections 177 and 296 - Writ Petition challenging order by Additional Deputy Commissioner setting aside demolition order of unauthorized building - Violation of building laws established with evidence of exceeding permissible coverage and constructed floors - Need for timely implementation of regulations emphasized. (Paras 16, 30, 34)
(B) Public Interest Litigation - Concept established - Residents' right to challenge unauthorized constructions impacting public safety and welfare. (Paras 3, 4, 28)
Facts of the case:
This writ petition was filed to challenge an order setting aside the demolition of an unauthorized structure constructed in violation of municipal laws by exceeding the approved building coverage and height limit. The original demolition order was based on significant violations identified in numerous inspections and legal frameworks.
Findings of Court:
The prior order was upheld by restoring it and requiring the Silchar Municipal Board to carry out the demolition within three months, applying necessary scientific methods to mitigate risks as outlined in municipal guidelines.
Issues: Key issues revolved around the interpretation of the Assam Municipal Act provisions regarding unauthorized constructions and the authority's power to enforce demolition in public interest.
Ratio Decidendi: The court underscored that strict adherence to building regulations is crucial to maintain public safety, and unauthorized deviations could not be routinely compounded, stressing the rule of law in urban planning.
Result: Writ petition allowed, restoration of the demolition order mandated.
GAHC010157072021 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM AND ARUNACHAL PRADESH)
WRIT PETITION (CIVIL) No.5388 of 2021 PARTHA PRATIM DAS S/o- Late Prafulla Kr. Das, Panchayat Road, Silchar, District- Cachar, Assam, PIN- 788005 ……PETITIONER -versus-
1. The State of Assam, Represented by the Commissioner and Secretary Under Development Department, Dispur, Guwahati-781006
2. The Executive Officer, Silchar Municipal Board, Silchar
3. Silchar Municipal Board represented by Executive Officer, Silchar.
4. Sri Kamal Barua, ACS, Additional Deputy Commissioner and Appellate Authority, Municipal Appeal Cases, Cachar, Silchar.
5. Sri Biswajit Roy, S/o- Late Rakesh Ch. Roy, Shyamaprasad Road, Shillong Patty, Ward No.23, Silchar- 788001.
……RESPONDENTS – B E F O R E –
HON’BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON’BLE MR. JUSTICE SOUMITRA SAIKIA Advocate for petitioner : Ms. SB Choudhury Advocate for respondent Nos.1& 4 : Mr. P Sarma, Additional Senior Government Advocate, Assam Advocate for respondent Nos.2& 3 : Mr. S Dutta, Senior Advocate Advocate for respondent No.5 : Mr. KN Choudhury, Senior Advocate Mr. D.J. Das Date of hearing &
Judgment & order : 06.01.2022 JUDGMENT AND ORDER (ORAL)
Sudhanshu Dhulia, C.J.
Heard Ms. SB Choudhury, learned counsel for the petitioner. Also heard Mr. P Sarma, learned Additional Senior Government Advocate, Assam, appearing for respondent Nos.1 and 4, Mr. Sishir Dutta, learned senior Standing Counsel, Silchar Municipal Board, appearing for respondent Nos.2 and 3 and Mr. KN Choudhury, learned senior counsel assisted by Mr. DJ Das, learned counsel appearing for respondent No.5.
2. This writ petition has been filed by the petitioner challenging the order dated 20.08.2021 (Annexure-VIII to the writ petition) passed by the Additional Deputy Commissioner, who is the appellate authority under the Assam Municipal Act, 1956 (in appeal, being M.A. Case No.07/2020, Sri Biswajit Roy vs. The Executive Officer, Silchar Municipal Board). By the said order, the earlier order dated 12.11.2020 passed by the Executive Officer of Silchar Municipal Board (hereinafter to be referred as ‘the Board’) for demolition of unauthorised building has been set aside. But before we come to the merits of the case and examine the relevant Building Laws and the legality of the impugned order, we must note down some relevant facts which are absolutely material for the adjudication of the present case.
3. A public interest litigation, being PIL 21/2020 was filed before this Court by a group of petitioners who were nine in number, and are residents of Silchar, which is a town in the district of Cachar in Barak Valley of Assam. The case of the petitioners was that an unauthorised construction of a commercial building was being made in Silchar, which is against the Building Laws and is causing disturbance in the neighbourhood and the petitioners being the residents of Silchar were aggrieved by this construction. They thus prayed for an interference and appropriate order of this Court in this PIL.
4. This Court vide its order dated 06.03.2020 took cognizance of the matter and passed the following order:
“1. Nine petitioners claiming to be residents of Silchar, District Cachar, have preferred this petition in public interest with the plea that illegal construction of commercial nature is going on, unchecked, and is against the existing rules and regulation, viz. Assam Notified Urban Areas (other than Guwahati) Building Rules, 1914 and Assam Municipal Act, 1956. It has further been pleaded that the gap between buildings is supposed to be 10 feet, however the same has not been maintained. Extra floors are being constructed on commercial buildings which is also in violation of the regulations. Under the Municipal laws, construction can cover 40% of the total land area, however 80% of the land area has been covered as is depicted from photographs placed on record from Page Nos.16 to 18. It has been pleaded that such construction other
