ORDER

Date : 31-10-2018 Heard Mr. SN Tamuli, learned counsel for the petitioners and Mr. R Dhar, learned Government Advocate, Assam.

By filing this petition under Article 226 of the Constitution of India, petitioners seek quashing of stop construction notice dated 23.03.2018, issued to the petitioners by the Chairman, Bongaigaon Municipality.

Petitioners are constructing an RCC building on their plot of land. Alleging that construction was being carried out in violation of the building norms, WP(C) No.7002/2016 (Aleman Nessa & Ors. Vs. State of Assam), was filed before this Court by the neighbours.

This Court by order dated 21.11.2016 while issuing notice, passed an interim order that Bongaigaon Municipality should ensure that further construction of the RCC building did not take place. Finally, WP(C) No.7002/2016 was heard and decided on 05.01.2018. The writ petition was disposed of in the following terms: -

“Taking note of the aforesaid submission of the learned counsel for the parties and having regard to the nature of controversy involved in this writ petition, the petition is being disposed of on the above consensus evolved at the Bar by providing that the respondent Nos.6 and 7 may go ahead with the construction of the RCC building by leaving a margin/setback of

1.5 meter.”

From the above, it is evident that there was a consensus at the Bar that respondent Nos.6 and 7 i.e., present petitioners would leave a margin/setback of 1.5 meter; and on such condition, they may go ahead with the construction of the RCC building.

The impugned stop construction notice may be adverted to, which reads as under: -

“ With reference to the notice/court order referred to the above I would like to inform you that officials of the Bongaigaon Municipality visited the building construction site and found that you are constructing the proposed building without keeping a setback of 1.5 meter on the northern side, thereby violated the order of the honourable Guwahati High Court dated 05.01.2018 along with deviation of the approved plan in respect of on-going construction of the building, under Section 171 of Assam Municipal Act, 1956. By doing such an illegal act you have also put mental distress to your neighbour Aleman Nessa, W/o. Lt. Majibor Rahman.

In view of the above, you are hereby directed to dismantle the illegal structure immediately at your own cost failing which stern action shall be initiated against you as per building construction norms.”

On a query by the Court, learned counsel for the petitioners submits that to maintain the setback/margin as above, petitioners would have to dismantle the construction at the side; presently they are constructing the frontage where the question of margin/setback does not arise.

Court is not convinced with the stand taken on behalf of the petitioner. When a solemn assurance was given to the Court that margin/setback of 1.5 meter would be left, whereafter petitioners may go ahead with the construction, action of the petitioners in going ahead with the construction without providing for such margin or the setback cannot be appreciated. In such circumstances, Chairman, Bongaigaon Municipality was justified in issuing the stop construction notice.

If the petitioners want to resume construction of the RCC building, they have to comply with the order of this Court dated 05.01.2018 by leaving a margin/setback of 1.5 meter and only thereafter they can resume construction of the RCC building.

Thus, no case for entertaining the writ petition is made out.

Subject to the observation made above, writ petition is dismissed.

JUDGE Biplab Comparing Assistant