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2009 DIGILAW 35 (GAU)

Kamrup Developers Pvt. Ltd. v. State of Assam

2009-01-20

C.R.SARMA, J.CHELAMESWAR

body2009
JUDGMENT J. Chelameswar, C.J. 1. The challenge in this writ petition is directed against the show cause notice No. GMDA/UC/302/04/2 dated 7.12.2004 and notice No. GMDA/UC/302/2004/8 dated 25.2.2005 issued by the Chief Executive Officer, Guwahati Metropolitan Development Authority (hereinafter referred to as 'the GMDA') directing the Petitioner M/s Kamrup Developer Company Pvt. Ltd. to demolish the basement plus 8 (eight) floors of the building in question constructed by the Petitioner Company at Ulubari, G.S. Road. 2. The facts, as stated in this writ petition, in brief, are as follows: The Petitioner Company, a Company incorporated under the provisions of the Companies Act, 1956 having its registered office at Peace Enclave, Ulubari, Guwahati-7, undertook construction of a commercial complex over a plot of land covered by Dag No. 344/343 (282/384), Patta No. 2/54 (496.27) of village New Town, Ulubari, Mouza Ulubari, after obtaining a No Objection Certificate and approval of plan from the Guwahati Municipal Corporation (hereinafter referred to as 'the Corporation') vide No. GPL 32/3/98/82/228 dated 15.5.1999 for ground floor and first floor with basement parking. Subsequently, vide order No. GPL/32/6/98/13/133 dated 5.6.1998 permission was obtained from the GMC for construction of the 2nd, 3rd and 4th floors. There after, a third No Objection Certificate for construction upto 8th floor was obtained from the GMC vide No. GPL/32/22/98/22/641 dated 16.8.1999. The GMDA vide Notice No. GMDA/GEN/MISC/4/99/11 dated 17.11.2004 issued under Section 107 of the Guwahati Metropolitan Development Authority Act, 1985, asked the Petitioner Company to submit copies of the Building Permission and approved drawings of the said construction within 7 (seven) days of the receipt of the said notice for verification. The Petitioner Company by their letters dated 6.6.1998 and dated 27.7.1998 (Annexures-7 and 8) informed the Chief Executive Officer, GMDA that the construction was undertaken as per the norms prescribed by the GMC. On 7.12.2004 vide Notice No. GMDA/UC/302/4/2 issued under Section 86 of the GMDA Act (Annexure-9), the Petitioner Company was asked to discontinue further construction on the ground of failure of the Petitioner company to furnish the relevant documents as called upon and thereby asked the Petitioner Company to show cause as to why the construction should not be liable to be demolished under Section 88(1) of the GMDA Act. 3. 3. The Town Planner of the GMDA, vide letter No. GMDA/BP/UC/302/2/6 dated 29.1.2005 informed the Petitioner Company that since they failed to furnish any drawing and NOC of the concerned building, 7.2.2005 was fixed for joint inspection of the construction and accordingly the Petitioner was directed to be present at the construction site along with approved plan and other relevant documents of the construction. Responding to the said notice, Shri Ashok Agarwal, one of the Directors of the Petitioner Company, vide letter dated 2.2.2005, informed the GMDA that due to marriage ceremony of his younger brother, scheduled to be held on 11.2.2005 at Tinsukia, all of their family members would be out of Guwahati with effect from 5th February, 2005 and as such requested to postpone the scheduled joint inspection. Thereafter, the Chief Executive Officer, GMDA in exercise of power under Section 88 of the GMDA Act, vide Order No. GMDA/UC/302/2004/8 dated 25.2.2005, issued notice to the Petitioner Company for demolition of the basement and the 8 (eight) floors of the construction in question on the ground of being unauthorised construction. The relevant portion of the notice dated 25.2.2005 reads as follows: Whereas you were asked to submit the documents in support of your construction vide Notice No. GMDA/GEN/Misc/4/99/11 dated 17.11.04. You have failed to produce the same by the due date. A second notice was also issued to you vide this office letter No. GMDA/UC/302/4/2, dated 17.12.04 asking you to suspend the construction and explain as to why the building should not be demolished. Whereas your reply by your letter dated 15.12.2004 has been received by us on 17.12.2004. You had informed that you have obtained permission for construction of the building from GMC but you have failed to submit any valid documents in support of the unauthorised construction. The construction continued all along against the direction to suspend the same. You were given another opportunity to produce the documents at the site on the date fixed for joint inspection on 7.2.2005 vide this office letter No. GMDA/UC/302/4/6 dated 29.1.2005. You have neither appeared on the date of joint inspection nor kept the documents at the site. It is regrettable that the building construction was going on despite instructions for suspension of the same. You have by your letter dated 3.2.2005 requested to defer the joint inspection for personal reasons. You have neither appeared on the date of joint inspection nor kept the documents at the site. It is regrettable that the building construction was going on despite instructions for suspension of the same. You have by your letter dated 3.2.2005 requested to defer the joint inspection for personal reasons. It clearly shows your non-cooperation and attempt to complete the building construction by resorting to dilatory tactics in violation of Sections 24 and 87 of GMDA Act, 1985 and Rule 18c of building bye-laws. So your request for postponement of the date for joint inspection is rejected in the light of your unwillingness to stop construction and non-cooperation. It was further observed during the inspection on 7.2.2005 that you have maintained extremely lower set back of 0.60 mtr. On the eastern and western sides respectively, while the required set back is 3.57 mtrs. as per the building bye-laws. So you have violated the provisions of Section 24 of GMDA Act, 1985 and Rule 18c of building bye-laws. Therefore, I Depur Hara Prasad, Chief Executive Officer, GMDA direct M/s Kamrup Developers (Pvt) Ltd., Peace Enclave, Ulubari, Guwahati-7 to demolish the unauthorised basement + 8 floors constructed in violation of GMDA Act and Building Bye-laws made there under and the Zoning Regulations within 5 days of the receipt of this order, failing which GMDA will be free to proceed with the demolition of the same without giving any further intimation and expenses thereof shall be recovered from M/s Kamrup Developers (Pvt) Ltd, Peace Enclave, Ulubari, Guwahati-7. They are further informed that this order will take effect without prejudice to any other punishment that can be inflicted under the relevant provisions of the GMDA Act, 1985 for such violation. 4. Aggrieved by the aforesaid demolition notice, the Petitioner Company has come up with the present writ petition, invoking jurisdiction under Article 226 of the Constitution on the ground that the impugned notice dated 25.2.2005 issued by the GMDA was without any authority of law. The Petitioner has specifically averred that the construction was made after obtaining due permission and that there was no violation of the prescribed norms. 5. In their affidavit-in-opposition, the Respondent No. 3 Corporation contended that 3 (three) No Objection Certificates were issued in favour of the Petitioner for construction of the concerned building upto 8th floor. 6. Refuting the contention made in the writ petition, the GMDA (Respondent Nos. 5. In their affidavit-in-opposition, the Respondent No. 3 Corporation contended that 3 (three) No Objection Certificates were issued in favour of the Petitioner for construction of the concerned building upto 8th floor. 6. Refuting the contention made in the writ petition, the GMDA (Respondent Nos. 4, 5 and 6) in their affidavit-in-opposition stated that in spite of notices being issued to the Petitioner company to produce the relevant documents relating to the building, constructed by the Petitioner, and to assist the GMDA authorities for site verification/inspection, the Petitioner Company refused to co-operate. Under the circumstances, the GMDA officials inspected the building in question on 7.2.2005, whereupon it was found that the Petitioner Company in complete violation of the No Objection Certificates, maintained extremely lower set-back of side margin of 0.60 mtrs on both Eastern and Western sides against the requirement of 3.5. mtrs under Clause 58.5 (II and II) of the Building Bye-Laws, and that the copies of the No Objection Certificates, purportedly issued by the GMC, revealed that the FAR of the building (basement plus 8 floors) was about 498 against FAR 300 as per Clause 58.5 (I) of the Building Bye-laws. The Respondents specifically contended that the Petitioner Company did not furnish copies of the approved drawing/plans to the GMDA for facilitating accurate assessment of the deviations. According to the GMDA, as revealed from the affidavit-in-opposition, there was no deviation up-to 3rd floor, but the Petitioner Company deviated from the No Objection Certificates in constructing the 4th to 8th floors by lowering the set-back upto 1.2 mtrs and by continuing the column line in the upper floor at 1.80 mtrs set-back with casting roofing slabs as against 3 mtrs as approved in the No Objection Certificates. It is stated, in the affidavit-in-opposition, that the building was extended up-to 8th floor on the basis of 3 (three) No Objection Certificates purportedly granted by the GMC without ascertaining the feasibility of construction up-to 8th floor. The Respondent GMDA has specifically denied the Petitioner's claim that the Petitioner submitted the required documents vide letters dated 6.6.1998 and 27.7.1998. The date of joint inspection was fixed on 7.2.2005, but the Petitioner refused to participate on the plea of marriage of one of his family members fixed on 11.2.2005 at Tinsukia, which according to the Respondent GMDA was not a reasonable ground for abstaining from the joint inspection. The date of joint inspection was fixed on 7.2.2005, but the Petitioner refused to participate on the plea of marriage of one of his family members fixed on 11.2.2005 at Tinsukia, which according to the Respondent GMDA was not a reasonable ground for abstaining from the joint inspection. It is also averred that the GMDA has passed the impugned order dated 25.2.2005 in compliance of the provisions of the GMDA Act and the Building Bye-laws. 7. By filing an affidavit-in-opposition, the Petitioner Company denied the contentions of the Respondent GMDA and stated that the construction was undertaken in accordance with the Guwahati Municipal Corporation's approved plan and that the structural Design Engineer and Architect of the building had given certificate in support of their structural design and that the quality of construction was in conformity with the requirements of the GMC. 8. Heard Mr. G.N. Sahewalla, learned Senior Counsel assisted by Ms. S. Senapati, for the Petitioner and Ms. M. Hazarika, learned Standing Counsel, Guwahati Metropolitan Development Authority as well as the learned Standing Counsel, Guwahati Municipal Corporation. 9. Mr. G.N. Sahewalla, learned Senior Counsel appearing for the Petitioner urged that the Petitioner constructed the building after obtaining due permission and N.O.C. from the Guwahati Municipal Corporation and that no deviation was made in the said construction and as such the impugned notice (Annexure-XHI) issued by the Guwahati Metropolitan Development Authority was unlawful and without any authority of law. It has also been contended, on behalf of the Petitioner, that the building was constructed on the basis of the NOCs issued by the Guwahati Municipal Corporation, which is also an appropriate authority to issue such certificates. 10. The specific case of the GMDA was that, on demand, the Petitioner failed to produce any valid document in support of the construction and that they even refused to cooperate in the joint inspection fixed on 7.2.2005, on the mere plea that the marriage of one of the family members of the Petitioner was scheduled to be held on 11.2.2005 at Tinsukia, for which all the members of the family would be out of station. As the Petitioner failed to appear with relevant documents at the site for joint inspection, the GMDA carried on inspection of the building on the said scheduled date. As the Petitioner failed to appear with relevant documents at the site for joint inspection, the GMDA carried on inspection of the building on the said scheduled date. In the inspection by the GMDA it was found that the Petitioner maintained extremely lower set back of 0.60 mtrs on the Eastern and Western sides respectively, while the required set back was 3.57 mtrs as per the Building Bye-laws. Thus, according to the GMDA the Petitioner had violated the provisions of the Building Bye-Laws and failed to produce any relevant document in support of the construction. A reading of the Annexure-IV (i.e. the 3rd N.O.C. dated 16.8.1993) reveals that the Guwahati Municipal Corporation granted the same for construction upto 8th floor requiring the Petitioner to keep margin of 10 ft (i.e. 3.05 mtrs) towards the EAST AND West of the building. In view of the finding of the GMDA during the inspection held on 7.2.2005 it is found that the prescribed margin was not maintained. There is nothing on record to show that the Petitioner had maintained the required side margin as provided by the said NOC dated 14.8.1999. Therefore, we find no force in the contention regarding non-deviation raised by Mr. G.N. Sahewall, learned Senior Counsel appearing for the Petitioner. 11. From the materials on record, more particularly, the letters dated 17.11.2004, 7.12.2004 and 29.1.2005 issued by the GMDA it appears that the GMDA had given sufficient opportunity to the Petitioner to produce the relevant documents, approved drawings etc. to substantiate the claim that the construction was consistent with the permission and the approved drawing etc. But the Petitioner failed to produce the relevant documents including approved plan, drawing etc. in support of the claim that the construction was in accordance with the prescribed norms and the Building Bye-laws. The impugned notice was issued indicating that the construction was made ignoring a previous notice to suspend the construction and that the same was done without any valid document, and as such the construction was an unauthorised one. The failure of the Petitioner to respond to the demand of the GMDA to produce the relevant documents implied absence of such document and this led the latter to issue the impugned notice dated 25.2.2005 requiring the Petitioner to demolish the said unauthorised basement and the eight floors of the building, constructed by the Petitioner. 12. The failure of the Petitioner to respond to the demand of the GMDA to produce the relevant documents implied absence of such document and this led the latter to issue the impugned notice dated 25.2.2005 requiring the Petitioner to demolish the said unauthorised basement and the eight floors of the building, constructed by the Petitioner. 12. There is no doubt that the NOCs dated 15.5.1998, 5.6.1998 and 1.4.1999 were issued by the Guwahati Municipal Corporation. The Guwahati Metropolitan Development Authority was established by the Guwahati Metropolitan Development Authority Act, 1985. The preamble of the Act reads as follows: Whereas it is expedient to prove for the establishment of an Authority for the enforcement and execution of the Master Plan and for the formulation and execution of schemes for the planned development of Guwahati Metropolitan Area, for the co-ordination and supervision of the execution of such plans and schemes with the object of securing proper living and sanitary conditions, to conserve and promote the public health, safety and general welfare of the people living therein and for matters connected therewith or incidental thereto. 13. In view of the above, the GMDA is also the authorised authority to supervise and monitor the developmental schemes, including construction of buildings, for safety and welfare of the people living in the metropolitan areas. Section 88 of the GMDA Act, 1985 empowers the GMDA to take action for demolition of buildings constructed without due permission, approval or sanction referred to under Sections 25 and 30 of the Act or in contravention of any condition subject to which such permission, approval and sanction was granted. 14. Referring to the three NOCs obtained from the GMC at three different stages of the construction, the GMDA, in its affidavit-in-opposition at paragraph-7, contended that the NOCs were purportedly granted by the GMC without ascertaining the fact whether the building had the required foundation for construction of eight floors. It is also averred that at the time of the inspection made on 22.6.2002 by the High-level Committee, the building had not reached the present stage of the construction. Admittedly, the GMDA by issuing notices dated 17.11.2004, 7.12.2004 and 29.1.2005 asked the Petitioner to produce all the documents including drawings etc. in support of the construction. But the Petitioner neither produced the relevant documents nor participated in the inspection held on 7.2.2005. Admittedly, the GMDA by issuing notices dated 17.11.2004, 7.12.2004 and 29.1.2005 asked the Petitioner to produce all the documents including drawings etc. in support of the construction. But the Petitioner neither produced the relevant documents nor participated in the inspection held on 7.2.2005. This failure on the part of the Petitioner was sufficient to prompt the GMDA to issue the impugned notice asking the Petitioner to demolish the same, holding that the said construction was unauthorised. 15. When the matter was taken up for hearing on 6.1.2009 this Court asked the learned Senior Counsel appearing for the Petitioner to furnish the relevant documents to the learned Counsel for the GMDA for scrutiny and accordingly the matter was adjourned till 7.1.2009, on which date it was informed that the Petitioner failed to produce the relevant documents including the drawings etc. in support of the construction. 16. Materials on record reveal that before issuing the impugned notice, the GMDA had given sufficient opportunity to the Petitioner to satisfy the GMDA that the alleged construction was duly made following the prescribed norms, but the Petitioner failed to respond. 17. In the backdrop of the above, the GMDA held that the construction was unauthorised and as such issued the impugned notice dated 25.2.2005 by exercising the power conferred by Section 88of the GMDA Act, 1985, which was preceded by the show cause notice dated 7.12.2004. The show cause notice was issued on the ground that, on being asked, the Petitioner failed to furnish the documents in support of the construction. As discussed above, there is nothing on record to show that the Petitioner had produced the relevant documents, including the drawing etc. before the GMDA in support of the construction. The Petitioner even chose not to produce the relevant documents before the authority concerned after the direction of the Court dated 6.1.2009. Situated thus, the impugned notice appears to be rightly issued exercising the jurisdiction conferred by Section 88 of the GMDA Act, 1985. 18. The upshot of the above narration is that the impugned notice dated 25.2.2005 does not warrant any interference in exercise of the power of judicial review of this Court. The petition being devoid of merits, is, thus dismissed. No costs.