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2006 DIGILAW 618 (GAU)

Rajdhani Filling Station v. State of Assam

2006-06-30

B.BISWAS, B.SUDERSHAN REDDY

body2006
JUDGMENT D. Biswas, J. 1. The Chief Executive Officer, Guwahati Metropolitan Development Authority, in short GMDA, in exercise of powers conferred upon him under Section 88 of the Guwahati Metropolitan Development Authority Act, 1985 passed order dated 23.5.2006 directing the petitioner No. 2, owner of M/s. Rajdhani Filling Station to remove the unauthorized building/structure constructed for the purpose of establishment of a retail sales counter of petroleum products in the parking space reserved for Udesna Cinema Hall owned by the petitioner No. 2 in violation of the provisions of the GMDA Act, 1985 and the building bye-laws framed thereunder. The order further mentions that the permission granted by the Guwahati Municipal Corporation vide letter dated 25.7.2005 was revoked by the same authority by the order dated 15.12.2005. The order further discloses that the explanation given by the writ petitioners in response to the notice dated 3.2.2005 were also rejected. 2. It may be mentioned here that the Chief Executive Officer, GMDA vide letter dated 3.2.2005 issued notice to the petitioners directing them to stop unapproved construction and to show cause. The petitioners responding to the above notice vide letters dated 14.2.2005 and 21.2.2005 submitted that the matter relating to permission was under consideration of the Guwahati Municipal Corporation and the concerned Additional Deputy Commissioner also took up the matter with various Departments. It was further stated that the business in the movie theatre was no longer viable, and the employees of the cinema business would be rehabilitated in the proposed filling station. It was further mentioned that a separate approach road has been proposed for the cinema hall ensuring all safety norms, and sufficient space for parking of motor vehicles/scooters, etc., was also earmarked after bifurcation of the cinema hall complex from the proposed filling station. 3. As directed by this court, the petitioner No. 2 filed the affidavit dated 30th May, 2006 indicating therein that the Guwahati Municipal Corporation and the Deputy Commissioner acted in an arbitrary and illegal manner and in complete violation of the principles of natural justice in cancelling and revoking the 'No Objection Certificate' and trade licence issued by them for carrying on the business of petrol pump without any opportunity to the petitioner firm to represent its case. With reference to Annexure-1, it is submitted that the petitioners are prepared to suspend the operation of the Cinema Hall pending permission for final closure so that they may carry on the business of petrol pump. 4. The GMC in its affidavit dated 1st June, 2006 submitted that the NOC dated 27.5.2005 was cancelled on the ground that the proposed site for installation of the petrol pump is within the campus of cinema hall and there is a big hospital in the vicinity of the proposed site which may create a hazardous situation. It is further stated that the matter as a whole cannot be commented unless a revised proposal for the entire complex of cinema hall and petrol pump is furnished. That apart, the allegations against the Associate Planner, GMC have been denied reiterating that all actions are taken by the Associate Planners in good faith and in public interest. The respondent Nos. 5 and 6 in their affidavit averred that they had, by the letter dated 3.2.2005, informed the Additional Deputy Commissioner, Kamrup (Metro) that the proposal of retail outlet of petroleum products in the present campus of Udesna Cinema Hall cannot be allowed as the area is reserved for parking space for the cinema hall. 5. We have heard Mr. H. Roy, learned senior counsel for the petitioners and Mr. B.J. Talukdar, learned Govt. advocate, Assam; Dr. N.K. Singh, learned Standing Counsel, GMDA and Mr. S. Samaria, learned Standing Counsel, GMC. 6. From the pleadings reproduced above, it would appear that the dispute relates to the construction of the RCC building for use as a retail outlet of petroleum products on the parking space reserved for Udesna Cinema Hall owned by the writ petitioners. From the affidavit submitted by the writ petitioners, it is clear that a part of the area meant for the parking space for the cinema hall has been bifurcated, and upon this land including the adjoining land owned by the writ petitioners, the construction of the RCC building has been undertaken. The GMDA in the month of February 2005 issued notice to the petitioners to stop unapproved construction. Thereafter, the Guwahati Municipal Corporation issued the NOC vide letter dated 25.7.2005. But the said NOC was later on revoked by the order dated 15.12.2005. The GMDA in the month of February 2005 issued notice to the petitioners to stop unapproved construction. Thereafter, the Guwahati Municipal Corporation issued the NOC vide letter dated 25.7.2005. But the said NOC was later on revoked by the order dated 15.12.2005. There are apparently some inconsistencies in the action of the Guwahati Metropolitan Development Authority and the Guwahati Municipal Corporation indicating lack of coordination between the two agencies of the State. But the factual matrix available in the case at hand clearly indicate that the writ petitioners had included a part of the parking space reserved for the cinema hall in the plan submitted by it before the GMC authorities for construction of RCC building for the retail outlet. It is true that before cancellation of the NOC, the GMC authorities did not give any opportunity to the writ petitioners to show cause. But from the pleadings of the writ petitioners, it would appear that there is an attempt on their part to construct the petrol pump in the area meant for the cinema hall. Therefore, hearing at any point of time could not have improved the situation for the writ petitioners. There is obviously a grave deviation which is distinct and palpable on the face of record. We have examined the provisions of the Building Bye-laws for The Guwahati Metropolitan Area, 1998: Regulation 58.9 provides for requirement for special type of buildings. For the cinema hall, a total area of 1860 square metres and, for the filling station a minimum of 527 square metres is necessary. The petitioners land in the complex in total measures 1 Bigha 4 Kathas which is short of the total minimum plot size prescribed under the bye-laws for both the cinema hall and the petrol pump. The movie theatre and the petrol pump apparently cannot run simultaneously. The petitioners cannot be allowed to carve out an area from the parking space of the cinema hall for installation of the petrol pump. The action of the petitioners in including an area meant, for car parking of the cinema hall with the site of the filling station is obviously against the provisions of law. The Court, therefore, finds no good ground for interference with the proposed action of the GMDA. 7. The action of the petitioners in including an area meant, for car parking of the cinema hall with the site of the filling station is obviously against the provisions of law. The Court, therefore, finds no good ground for interference with the proposed action of the GMDA. 7. The petition is disposed of accordingly without any comment on the viability of the alternative proposal for closure of the cinema hall and installation of the retail outlet which exclusively pertains to the domain of the respondent-authority.