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2009 DIGILAW 487 (GAU)

Kapoor Chand Jain v. State of Assam

2009-07-23

I.A.ANSARI, J.CHELAMESWAR

body2009
JUDGMENT : I.A. Ansari, J. 1. By this common judgment and order, we propose to dispose of both these writ petitions inasmuch as both these writ petitions, being inextricably linked with each other, were, on the request of the learned counsel for the parties, heard together. The material facts, giving rise to these two writ petitions, may be, in brief, set out as under: (i) In WP(C) No. 2011/2007, the petitioner No. 1 is the owner and in possession of a plot of land, measuring about 1 Katha 5 Lechas or 3.19 Acres, covered by Dag No. 2583 of K.P. Patta No. 1143, situated at Kedar Road, Sadar Guwahati Block No. 1, Mouza Guwahati, under Holding No. 26 of Ward No. 19 of Gauhati Municipal Corporation. The petitioner No. 2 is the owner and in possession of another plot of land, measuring about 1 Katha or 2.66 Acres, covered by Dag No. 149 of K.P. Patta No. 1146, situated to Kedar Road, Sadar Guwahati Block No. 1, Mouza Guwahati, under Holding No. 26A of Ward No. 19 Gauhati Municipal Corporation. The said two plots of land are clubbed together and it forms one single plot of 2 Kathas 5 Lechas or 5.85 Acres. (ii) In WP(C) No. 2012/2007, the plot, in question, is a combination of a plots of land, measuring 1 Katha 8.54 Lechas or 3.71 Acres, consisting of a plot of land, measuring about 14 Lechas or 1.84 Acres, covered by Dag No. 2584 of KP Patta No. 1144, situated at Kedar Road, Sadar Guwahati Block No. 1, Mouza Guwahati, under Holding No. 24 of Ward No. 19 Gauhati Municipal Corporation and another two plots of land, each measuring about 7 Lechas or 1.87 Acres, covered by Dag Nos. 168 and 169 of K.P. Patta Nos. 1145 and 1147 respectively, situated at Kedar Road, Sadar Guwahati Block No. 1, Mouza Guwahati, under Holding No. 24A of Ward No. 19, Gauhati Municipal Corporation, and the said plots at land being owned and possessed by petitioner No. 1. (iii) By making two applications, dated 18.03.2000, the petitioners applied to the Gauhati Municipal Corporation (in short, 'GMC') for permission for construction of a multi-storied building, consisting of ground floor, parking place and seven upper floors, the entire ground floor of the building being meant for car parking. (iii) By making two applications, dated 18.03.2000, the petitioners applied to the Gauhati Municipal Corporation (in short, 'GMC') for permission for construction of a multi-storied building, consisting of ground floor, parking place and seven upper floors, the entire ground floor of the building being meant for car parking. (iv) By order, dated 16.052000, Commissioner, GMC, rejected the prayer for permission on the ground that the Floor Area Ratios (in short, 'F.A.R') and all side margins of the said building were not within the permissible limit. (v) Against the order, dated 16.05.2000, aforementioned, the petitioners preferred an appeal before the Standing Appeal Committee (in short, 'SAC') of the GMC. This appeal came to be registered as Appeal Case No. GCL/28/2000. By order, dated 31.05.2000, the appeal was allowed, the order, dated 16.05.2000, passed by the Commissioner, GMC, was set aside and it was directed that permission be given to the petitioners as per the drawings submitted by the petitioners. (vi) Notwithstanding the fact that the order, dated 16.05.2000, aforementioned, passed by the Commissioner, GMC, had been set aside by the SAC, as aforesaid, the Commissioner, GMC, passed two orders, on 08.01.2001, rejecting, once again, necessary permission sought for and the petitioners were asked to submit a revised plan strictly adhering to the norms contained in the GMC Bye-laws. The petitioners, then, approached the Administrator of the GMC, who was, at the relevant point of time, Minister, Guwahati Development Department, for redressal of their grievances. During the said period, GMC had been superseded, by the Government, in terms of the Gauhati Municipal Corporation Act, 1971 (in short, 'the Act'), and the Administrator was treated to be the highest authority in the GMC. (vii) By letters, dated 29.05.2002, the petitioners were informed that the Administrator had reviewed the order of the SAC and reduced the number of floors to six (ground floor for parking + six upper floors) instead of seven (ground floor + seven upper floors). The petitioners were also informed by letter, dated 29.05.2002, aforementioned, that the Administrator had also reduced the F.A.R. to 355.11 and imposed a fine of rupees 3.00 lakhs in the case of land, which forms the subject-matter of WP(C) No. 2011 of 2007 and that the administrator had, in respect of the plot of the land, which forms the subject-matter of WP(C) No. 2012/2007, reduced the FAR to 299.98 and imposed a fine of rupees Rs. 2.50 lakhs. (viii) The powers to compound, on payment of fine, for violation of the various provisions of master plans, zoning plans regulations and building bye-laws, have been provided in Appendix-III to the Building Bye-laws for Gauhati Municipal Corporation Area, 1998 (hereinafter referred to as the Building Bye-laws of 1998). (ix) The petitioners paid, as had been directed by the administrator, the fine of the said sums of rupees 3.00 lakhs and rupees 2.50 lakhs. The petitioners claim that the other conditions, laid down in the letter, dated 29.05.2002, aforementioned, were also complied with by the petitioners. According to the petitioners, even after payment of the fine and compliance with the conditions set out in the letter, dated 29.05.2002, aforementioned the Commissioner, GMC, issued yet another letter, dated 02.09.2002, whereby the petitioners were asked to meet the following requirements: "1. Plans/elevation/section not shown property. 2. Site plan-boundary incorrect. 3. Site inadequate 4. Set back provided inadequate. Other reasons: (1) Obtain NOC from the Fire Department. (2) Give an affidavit regarding the structural certificate in 3. GMC Format. (3) Not to start the construction work before getting the NOC.)" (x) The petitioners claim that on receipt of the sold letters dated 02.09.2002, the petitioners complied with the conditions laid down therein. The conditions, set out in the letter, dated 02.09.2002, aforementioned included obtaining of 'No Objection Certificate' (in short, 'NOC') from the Fire Department. In this regard, the petitioners claim that the Fire Department issues, on application seeking NOC, a provisional NOC, and it is only after completion of proposed building that the final NOC is issued. The requirement of NOC from the Fire Department is embodied in Bye-Law 58.11(B) of the Building Bye-laws of 1998. (xi) Though the petitioners made several representations to the concerned authorities of the GMC, no NOC was granted to them. The petitioners, then, filed two writ petitions, which came to be registered as WP(C) No. 6160/2005 and WP(C) No. 6161/2005. It is the case of the petitioners that after filing of the said writ petitions, the petitioners were verbally assured by the GMC that the NOCs would issued and, depending upon the assurance, so given, the petitioners withdrew the writ petitions with liberty to approach the Court, in future, if so required. By orders, dated 31.08.2005, both the writ petitions were allowed to be withdrawn with liberty as had been sought for. By orders, dated 31.08.2005, both the writ petitions were allowed to be withdrawn with liberty as had been sought for. (xii) When, even after withdrawal of the said writ petitions, the NOCs were not issued, the petitioners made representation, dated 21.07.2006, addressed to the Secretary, GMC, expressing their grievances as regards the non-issuance of the NOCs by the GMC and requested that the NOCs be directed to be issued by the GMC. (xiii) In the meanwhile, because of the mushroom growth of disorderly construction of buildings, particularly, construction of high-rise buildings within the GMC area, a Division Bench of this Court took up, suo moto, a writ petition, which came to be registered as WP(C) (taken up) No. 1200/2006. By various interim order(s), passed from time to time, in WP(C) No. 1200/2006, the High Court, temporarily stopped construction of high-rise buildings in the city of Guwahati. The said writ petition, namely, WP(C) No. 1200/2006 came to be disposed of, on 21.11.2006, with directions to the GMC to bring a new building bye-laws into force and it was also directed that all pending applications should be considered as per the new building bye-laws. (xiii) Following the directions, as aforesaid, passed in WP(C) 1200/2006, the petitioners, by orders, dated 14.03.2007, issued by the Government of Assam, Guwahati Development Department, GMC, were informed to the effect that as per the judgment and order, dated 21.11.2006, passed in WP(C) No. 1200/2006, the petitioner could, now, apply, as per the new bye-laws, for permission in respect of construction of building(s) and prefer claim before the Commissioner, GMC, for refund of money deposited earlier by the petitioners. (xiv) Aggrieved by the fact that the NOCs, as had been sought for, had not been granted to the petitioners and the petitioners had, now, been asked to apply for building permissions as per the new bye-laws, the petitioners have come to this Court, with the help of these two writ petitions, namely, WP(C) No. 2011/2007 and WP(C) No. 2012/2007, seeking to get the letter, dated 14.03.2007, issued by the respondent No. 5, namely, Deputy Secretary to the Government of Assam, Guwahati Development Department, set aside and quashed and also seeking a writ, in the nature of mandamus, to be issued directing the respondents/authorities concerned, particularly, respondent No. 3, namely, Commissioner, Guwahati Municipal Corporation, to, immediately, issue requisite NOCs and further allow the petitioners to have change in the use of the proposed building as per the petitioners' letter, dated 21.07.2006. (xv) The respondents have resisted the writ petition, their case being, in brief, thus: On the applications, made by the petitioners, seeking permission for construction of multi-storied building, the proposals, submitted by the petitioners, were minutely examined in the light of the provisions of the Building Bye-laws of 1998 and, on such scrutiny, it was found that the proposed floor area ratio and the side margins of the building were not within the permissible limit and, hence, permission was rejected by order, dated 16.05.2000, issued by the Commissioner, GMC. Aggrieved by the rejection of their applications, whereby permission had been sought for, the petitioners preferred an appeal before the SAC and, by order, dated 31.05.2000, the SAC set aside the order, dated 16.05.2000, whereby the Commissioner, GMC, had rejected the permission, which the petitioners had sought for. While setting aside the order of the Commissioner, GMC, the SAC, in its order, dated 31.05.2000, further directed the GMC to consider the petitioners' proposals as per the drawings, which had already been submitted by the petitioners seeking permission of the GMC to construct multi-storied building. Following the directions, so given by the SAC, in its letter, dated 31.05.2000, the petitioner, again, approached the Commissioner, GMC, and insisted, on the strength of the decision of the SAC, that the Commissioner, GMC, shall grant the permission. Following the directions, so given by the SAC, in its letter, dated 31.05.2000, the petitioner, again, approached the Commissioner, GMC, and insisted, on the strength of the decision of the SAC, that the Commissioner, GMC, shall grant the permission. The proposals, submitted by the petitioners, were, however, rejected as per the recommendations made by the Administrator, GMC, and the order of rejection was duly communicated to the petitioners with the directions to submit a revised plan for obtaining the requisite NOC. (xvi) Pursuant to the directions, so given, the petitioners submitted, to the GMC, a modified plan. The plan, so submitted, was examined at the end of the GMC in the light of the relevant provisions contained in the Building Bye-laws of 1998. The Technical Committee was of the view that the modified proposals were possible to be considered subject to fulfillment of certain conditions, more particularly, by depositing fine for deviations, as discernible from the drawings, submitted by the petitioners. These recommendations of the Technical Committee were submitted before the SAC for further decision and approval. The SAC, then, reviewed its earlier decision and finally decided that the proposals were possible to be considered and, accordingly, the F.A.R. deviations were allowed to be compounded up to 180.60 MZ. Pursuant to the recommendations made by the Technical Committee, and the decision reached thereon by the SAC, the petitioners again submitted their proposals before the Administrator, GMC, whereupon the Administrator, GMC, upon considering the recommendations, decision of the Technical Committee and the SAC, finally, approved the proposals up to 6th floor by imposing a fine of rupees 3.00 lakhs and also added a few other conditions, which were as under: "(1) Appellant shall not be considered for any further construction, except stated in the IR. (2) To obtain NOC from State Fire Organisation. (3) Builder shall have to submit affidavit regarding the structural certificate. (4) Arrange compulsory parking area provision. (5) To construct his own service system. (6) No further FAR beyond 355.11. (7) To obtain compulsory certificate from GMC and if any construction is found beyond this approval the same shall be liable for instant demolition at the owners own cost. (8) To pay a fine of Rs. (4) Arrange compulsory parking area provision. (5) To construct his own service system. (6) No further FAR beyond 355.11. (7) To obtain compulsory certificate from GMC and if any construction is found beyond this approval the same shall be liable for instant demolition at the owners own cost. (8) To pay a fine of Rs. 3 lakhs." (xvii) In course of time, Guwahati Development Department, vide its letter, dated 18.11.2005, forwarded to the petitioners, a direction issued by the Girwahati Development Department, Government of Assam, to submit a detailed report on the subject-matter as regards me petitioners' proposal for construction of the building. On receipt of the necessary report from the GMC Guwahati Development, Government of Assam, Department reviewed the entire matter and, by its letter, dated 14.03.2007, Deputy Secretary, Government of Assam, Guwahati Development Department, informed the GMC that in terms of the directions issued by the High Court, in WP(C) (taken up) No. 1200/2006, permission for building construction, within the city of Guwahati, shall be issued as per the revised building bye-laws even in the case of pending applications. The proposals of the petitioners were accordingly rejected and directions were issued to return to the petitioners the money, which the petitioners had deposited, as fine, for compensation, for regularising the deviations in their project of construction of the multi-storied building. Though the Administrator, GMC, had approved the petitioners' proposal in the year 2001, yet, since the Administrator's directions were subject to satisfaction of certain conditions and the matter could not be finally concluded due to various requirements, which had not been fulfilled, and, in the meanwhile, the High Court, in WP (C) No. 1200/2006, directed that all pending proposals (wherein final NOC and approved plan had not been issued till the date of passing of the order, dated 21.11.06), whatsoever may be the position, it should have to be entertained as per the newly enacted revised building bye-laws. In such circumstances, the petitioners' proposals need to be considered in the light of the new bye-laws and this would be possible only when the petitioners submit fresh proposals in conformity with the requirements of the new building bye-laws, which have already come into force. 2. We have heard Mr. N. Dutta, learned Senior counsel, appearing on behalf of the petitioners, and Ms. B. Goyal, learned Government Advocate, appearing on behalf of the respondent No. 1 and 5. 2. We have heard Mr. N. Dutta, learned Senior counsel, appearing on behalf of the petitioners, and Ms. B. Goyal, learned Government Advocate, appearing on behalf of the respondent No. 1 and 5. We have also heard Mr. H. Sarma, learned Standing Counsel, GMC, appearing on behalf of the respondent Nos. 2, 3 and 4. 3. In a nutshell, the writ petitioners have assailed the act of not granting permission to them on the following grounds, namely. (i) The direction, which was passed by this Court, in WP(C) No. 2011/2007, on 21.11.2009, had no bearing, in the present case, inasmuch as the applications, filed by the petitioners, seeking permission to construct multi-storied building had been allowed by the Administrator, subject to fulfillment of certain conditions and when the conditions, so imposed, were fulfilled long before the said directions passed by the High Court, no new application for permission, under the revised bye-laws, need be made by the petitioners. (ii) Another ground on which the petitioners have challenged the refusal to grant permission by the GMC is based on Section 438 of the Gauhati Municipal Corporation Act, 1971 (hereinafter referred to as "the Act of 1971"). The petitioners have pointed out that in the light of provisions of Section 438 of the Act of 1971, appeal lies to the Standing Appeal Committee (SAC), from the order of the Commissioner, if the Commissioner refused to give building permission and if SAC sets aside or modifies the order of the Commissioner, he may, within 60 days, refer the matter to the Corporation and the decision of the SAC or the Corporation, if the matter is referred to the Corporation, shall be final. In the present cases, points out the petitioners, the Commissioner had not referred the decision of the SAC to the Corporation and, hence, the said decision of the SAC had attained finality and the Commissioner was bound to obey the order of the SAC passed in the appeal. (iii) Yet another ground on which the petitioners have challenged the legality of the refusal to grant them permission is that during the period, when the GMC stands superseded, an appeal lies to the State Government against the order of the SAC. (iii) Yet another ground on which the petitioners have challenged the legality of the refusal to grant them permission is that during the period, when the GMC stands superseded, an appeal lies to the State Government against the order of the SAC. It is further pointed out, on behalf of the petitioners, that by his letter, dated 08.01.2001, the Commissioner, GMC, once again, rejected the permission despite the fact that the order of the SAC had attained finality. Be that as it may, when the Commissioner, GMC, vide his letter, dated 08.01.2001, rejected the petitioners' request for permission and the petitioners were asked to submit a revised plan, the petitioners approached the Administrator of the GMC, who was, at the relevant point, Minister, Guwahati Development Deportment, for redressal of their grievances, whereupon the Administrator reviewed the directions passed by the SAC and by the letter, dated 29.05.2002, aforementioned, the petitioners were informed that the Administrator had reviewed the order of the SAC and reduced the number of floors to 6 (Ground Floor Parking + 6 Upper Floors) instead of 7 (Ground Floor Parking + 7 Upper Floors). The Administrator had reduced (in respect of the subject-matter of WP(C) No. 2011/2007), the F.A.R. to 355.11 and imposed a fine of Rs. 3.00 lakhs (Rupees Three Lakhs) and (in respect of the subject-matter of WP(C) No. 2012/2007), the F.A.R. was reduced by him to 299.88 and the fine imposed by him was of Rs. 2.5 lakhs. Acting upon the review order, so passed by the Administrator, though the petitioners had deposited fine and did whatever were needful for them to do, the Commissioner, GMC, without authority of law, has refused to grant permission on the ground that the order, dated 21.11.2006, passed by the High Court, in WP(C) No. 2011/2009, requires that all pending applications shall be considered in terms of the revised bye-laws, though the petitioners had, long before the directions given by the High Court, on 21.11.2006, already satisfied all the conditions, which the Administrator had, upon review of the order, passed by the SAC, imposed. In other words, what the petitioners contend is that in terms of the directions issued by the Administrator-cum-Minister, Guwahati Development Department, when the Administrator, GMC, had asked the petitioners to submit certain documents as indicated in the letter, dated 29.05.2002, for the purpose of granting requisite permission and when the petitioners had already com-plied with the directions, which had been set forth in the letter aforementioned, the Commissioner, GMC, could not have withheld the grant of 'NOC'. 4. Broadly speaking, therefore, the petitioners' contentions are that the SAC's decision rendered, in appeal, having not been referred by the Commissioner, GMC, to the Corporation, the SAC's decision had become final and the Commissioner, GMC, ought to have granted permission in terms of the appellate order passed by the SAC. It is also the case of the petitioners that, despite the fact that the order passed, in appeal, by the SAC had attained finality, when the Commissioner had refused to grant permission, the petitioners applied to the Administrator for redressal of their grievances and the Administrator had reviewed the order of the SAC and when, acting upon the order passed, on review, by the Administrator, the petitioners had already deposited fine and submitted requisite materials, the refusal to grant permission to them is illegal and arbitrary. It is the further case of the petitioners that their applications, seeking permission, cannot be treated as pending applications on the date, when the order, dated 21.11.2006, was passed by the High Court in WP(C) No. (taken up) 1200/2006. 5. As the reliefs, which the petitioners have sough for, depend, to a large extent, on the provisions of Section 438 we extract herein below Section 438, which reads as under: "438. 5. As the reliefs, which the petitioners have sough for, depend, to a large extent, on the provisions of Section 438 we extract herein below Section 438, which reads as under: "438. Appeals from Commissioner to Standing Committee.- Notwithstanding anything contained in the provisions of this Act in the matter of appeal, an appeal shall lie to the Standing Committee from- (a) any notice issued or other action taken or proposed to be taken by the Com-missioner- (i) under any section of this Act; (ii) under any bye-law concerning house-drainage, or the connection of house-drains, with municipal drains or house-connections with municipal water supply or lighting mains; (b) any refusal by the Commissioner to grant permission to construct or reconstruct a building; (c) any refusal by the Commissioner to grant a permission under any section of this Act; (d) any refusal by the Commissioner to grant a licence; (e) any order of the Commissioner suspending or revoking a licence; (f) any other order of the Commissioner that may be made applicable by rules framed under this Act. (2) If, on any such appeal, the Standing Committee reverses or substantially modifies any action taken or proposed to be taken by the Commissioner or any order passed by him, he may, within sixty days of the date of such decision, refer the matter to the Corporation and pending the decision of the Corporation on such reference the Commissioner shall not be bound to give effect to the decision of the Standing Committee. The decision of the Standing Committee, or where the matter has been referred to the Corporation as aforesaid, the decision of the Corporation shall be final [Provided that notwithstanding anything contained in the Act, during the period of supersession, an appeal shall lie before the State Government against the decision of the Standing Appeal Committee.] (3) Notwithstanding anything contained in the principal Act, the State Government may, at any time, call for the records in any matter from the Corporation and gave such order as may be deemed necessary after examination of such records. The order of the State Government, in this regard, shall be final." 6. The order of the State Government, in this regard, shall be final." 6. From a careful reading of Section 438, what becomes clear is that when the Commissioner, GMC, refuses to grant permission to construct a building or reconstruct a building the person, who had applied for such permission, may prefer an appeal to the Standing Committee. The Standing Committee has been given the power to reverse or substantially modify the action taken or proposed to be taken by the Commissioner or any order passed by him. If the Commissioner finds that the direction passed by the Standing Committee is not agreeable to him, he may, within a period of 60 days of the date of such decision of the Standing Committee, refer the matter to the Corporation. If the Commissioner does not make any such reference to the Corporation, the decision of the Standing Committee, on expiry of the said period of 60 days, would attain finality. If, however, the Commissioner refers the matter, within the said period of 60 days, to the Corporation, then, the decision of the Corporation shall be final. 7. Notwithstanding the finality, which is attributed to the decision of the Standing Committee or the Corporation, as the case may be, the State Government has been given the power to call for the records, in any matter, from the Corporation and give such order(s) as may be deemed necessary after examination of such record. Sub-Section (3) of Section 438 also makes it transparent that when the State Government makes any order, upon calling of records the order of the State Government shall be final. The proviso to Sub-Section (2) of Section 438 makes it clear that during the period, when the Corporation remains under supersession, an appeal would lie, instead of the Corporation, before the State Government against the decision of the SAC. 8. In the present case, though the SAC had, on 31.05.2000, passed the order that the present petitioners were entitled to be accorded permission, sought for by them, as per drawings submitted by the petitioners and had set aside the order, dated 16.05.2000, whereby the Commissioner, GMC, had rejected the petitioners' proposal for construction of a multi-storied complex, the said directions of the SAC had not been carried out. As the Commissioner, by orders, dated 08.01.2001, and 16.03.2001, refused to grant permission despite the said order of the SAC, the petitioners approached the Administrator, who happen to be the Minister, Guwahati Development Department, for redressal of their grievances and as, during the said period, the GMC was in supersession, the Administrator was the highest authority and when the Administrator had reviewed the order, the review order was, basically, an order of the Corporation. Whatever decision has been given by the Administrator, in terms of the letter, dated 29.05.2002, was the final decision. If the petitioners have satisfied the conditions, which had been set forth, by the Administrator, the petitioners would be, ordinarily, entitled to receive the permission and this Court should not, ordinarily hesitate to issue, in exercise of its jurisdiction under Article 226, a writ, in the nature of mandamus, directing the respondents, particularly, the Commissioner, GMC, to grant requisite permission. 9. What is, however, extremely important to note, now, is that the relief's, which the High Court grants under Article 226, are discretionary. Though this discretion cannot be arbitrarily exercised, the fact remains that the exercise of discretion would not be possible if the issuance of mandamus by this Court would amount to enforcing an order, whereby the authority, who passed the order, is found to have acted either without jurisdiction or far in excess of his jurisdiction or where the order, in question, is arbitrary or mala fide. In other words, when an authority, whose orders are statutorily final, passes an order without jurisdiction or in highly improper exercise of jurisdiction, such an order does not vest any right in the person in whose favor such an order has been made and the High Court would not enforce such an order by issuing a writ, in the nature of mandamus, in exercise of its powers under Article 226. The power of judicial review of an administrative decision is not directed against the decision of the administrator, but against his decision-making process. If an administrative authority, appellate or otherwise, while reaching a decision, does not take into account all factors, which are relevant, or take into account a factor, which is wholly irrelevant, such a decision - making process cannot be upheld and, consequently, a decision, reached by taking recourse to such a decision-making process, cannot be enforced by invoking High Court's jurisdiction under Article 226. 10. 10. Before proceeding further, we may pause and refer to Appendix-III to the Building Bye-laws of 1998, which provides for composition of violation. Appendix-III reads as under: "Penalties to be levied for violations of provision of Master Plan/Zoning Plan Regulations & Bye-laws. (i) All provisions of Bye-laws except items given below shall not be compounded/regularised and shall have to be rectified by alteration/demolition at the risk and cost of owner. Compoundable items: 1. Coverage - Maximum of 15% 2. FAR - Maximum of 10% 3. Set Back - Upto 2'-6" 4. Open Space - Maximum 10% reduction. 5. Total Height of Building - 105% Non Compoundable Items: 1. Use of building 2. Addition of extra floor 3. Parking Norms 4. Parking Norms 5. Projection/encroachment of public land." 11. In the backdrop of the position of law as indicated hereinabove, when we turn to the facts of the present case, we find that even according to the decision, dated 31.05.2000, reached by the SAC, the F.A.R. was in excess of permissible limit; yet the SAC ignored the fact that the F.A.R. was beyond permissible limits and decided that notwithstanding the violation in respect of the F.A.R., permission needs to be granted. 12. A bare reading of the Appendix-III to the Building Bye-laws of 1998 (which the petitioners rely upon) clearly shows that compoundable limit of F.A.R. is not more than 10%; hence, not more than 10% of F.A.R. could have been compounded by the SAC. In the present case, the SAC, as the decision, dated 31.05.2000, reflects, ignored the requirement of the F.A.R. and directed granting of permission The direction, so given, was, thus, nothing, but arbitrary inasmuch as the SAC exercised a power, which it had not been vested with. There is nothing in the decision of even the Administrator to show that the reduction of the F.A.R. 299.88 was within the permissible limits of 10%. The mere fact that a decision had been taken by the SAC to grant permission and, later on, reviewed by the Administrator, subject to reduction in the percentage of F.A.R., cannot make the High Court direct enforcement of such a decision, which is palpably arbitrary. 13. The mere fact that a decision had been taken by the SAC to grant permission and, later on, reviewed by the Administrator, subject to reduction in the percentage of F.A.R., cannot make the High Court direct enforcement of such a decision, which is palpably arbitrary. 13. It needs to be carefully noted, with regard to the above, that it is not the case of the petitioners nor is it the case of the SAC and/or the Administrator that the violation, committed by the petitioners in respect or the F.A.R., were within the permissible limits of 10%. Had such been the case of the petitioners or any of the parties aforementioned, the situation would have, perhaps, been a little different. What we notice, and notice with shock, is that the F.A.R. has been reduced without giving even slightest indication that the violation, in respect of the F.A.R., was within the permissible limits. What the petitioners intelligently contend is that since the orders of SAC and/or administrator had attained finality, such orders ought to have been complied with by the Commissioner, GMC, and since the Commissioner, GMC, has refused to comply with the said directions, the High Court shall issue a writ of mandamus commanding the Commissioner, GMC, to accord permission as sought for by the petitioners. Since the order, as indicated hereinbefore, is ex facie far beyond the powers conferred on the authorities concerned, such on order cannot be enforced by taking recourse to Article 226. 14. What is, now, required to be noted is that under Appendix-III, the maximum compoundable limit of the Set Back is 2'-6". It is clear from the decision, reached by the SAC, dated 31.05.2000, that the side margins were beyond the permissible limits; yet this violation too has been ignored by the SAC and as far as the order of the Administrator is concerned, it indicates complete non-application of mind, in this regard, inasmuch as the Administrator has said nothing as regards the violation of the Set Back. The SAC, according to what its decision reveals, observed that since the prevalent norms for commercial zone, as regards the side margin is Zero, the appellants deserved to be accorded permission, because they had kept some side margin though not in terms of the norms. The reasoning, so assigned for ignoring the requirement of Set Back, was not only amazing, but arbitrary. The reasoning, so assigned for ignoring the requirement of Set Back, was not only amazing, but arbitrary. Thus, the decision of both the authorities, namely, the SAC as well as the Administrator, clearly indicate that the violation were ignored arbitrarily, and the logic adopted for ignoring the violation was that the other commercial buildings, in the city of Guwahati, suffer from more serious violation. 15. We may point out that a strange reason was assigned by the SAC, when it observed: "Considering the irregularities committed in certain high rise in the city, as referred to by the learned counsel for the appellants, the appellants.' proposal show much more compliances to the required norms. Considering the present trend for increasing demand for commercial/residential accommodation in the city there is no alternative than to go for vertical extension, as we observe. Considering these aspects, the competent authorities accorded permission for such high buildings." 16. The observation, quoted above, reveal that since there is large scale of rampant violation of the building norms in respect of commercial buildings and compared to them, the violation of the norms by the writ petitioners were less, the petitioners deserved to be granted permission. It is a strange logic, which the SAC had assigned. The duty of the SAC was to determine if the violations were compoundable or if not, then; the violations could not have been compounded. Even if the violations were compoundable, then too, such violation could not have been compounded beyond the permissible limits. The SAC appears to have done nothing this regard. The approach of the SAC was highly mala fide inasmuch as it (SAC), according to the impression that we have gathered, did not, purposefully mention the extent of violation in respect of F.A.R. and/or Set Back so that the reasons, for conducting violations, remain vague. 17. In order to justify its position on the question of F.A.R., the SAC has assigned yet another strange logic inasmuch as it observed thus: "In the instant case, the appellants' plot is located in Kedar Road, which has developed as a prime commercial area of the city adjacent to Fancy Bazar and Hotel Rituraj is also situated near the proposed site of the appellants. The F.A.R. would not be excess if the land area is computed in relation to the width of Kedar Road, which is more than 50 ft. wide. The F.A.R. would not be excess if the land area is computed in relation to the width of Kedar Road, which is more than 50 ft. wide. The front side road as shown in the appellants' drawing is an approach road only and the appellants' plots of land are located at the dead-end of the approach road/bye-lane of Kedar Road. It appears that the approach road is not a public thorough FAR and so the same may not to be treated as front side road of the proposed building." 18. The logic, assigned above by the SAC, is, again, nothing, but astounding and arbitrary inasmuch as the front side of the proposed building would be the entry point of the building; obviously, the entry point of the building is not from Kedar Road; rather, the entry point of the building is through a bye-lane. When the front side of the proposed building and/or entrance to the proposed building faces a lane, the F.A.R. shall be calculated on the basis of width of the bye-lane and not on the basis of width of Kedar Road (which is not located on the front side of the proposed building). The reference to Kedar Road has, obviously, been made by the SAC in order to offer some justification for its decision to condone the violation in respect of F.A.R. committed by the petitioners. The SAC did not boldly say that the approach road shall not be treated as the front side. What, rather, the SAC observed was: "The front side road as shown in the appellants' drawing is an approach road only and the appellants' plots of land are located at the dead-end of the approach road/bye-lane of Kedar Road. It appears that the approach road is not a public thorough F.A.R. and so the same may not to be treated as front side road of the proposed building." 19. In its anxiety to continue to justify its decision to condone the brazen violation of the bye-laws by the petitioners in the proposed construction of their multi-storied complex, the SAC observed, thus: "The pertinent point to be noted herein is that the authority should make necessary endeavour to see as to whether the builders have undertaken the construction properly with such approved building materials, foundations etc. making the same strong enough and competent enough to resist seismic threat, as we think. making the same strong enough and competent enough to resist seismic threat, as we think. The provision for Master Plan for Guwahati has now become old and absolute, which is not capable to cope with the changing trend of the city in respect of development of buildings. The appellants' endeavour would make provision for much more accommodation if they are allowed to erect their proposal buildings." 20. From the observations, so made, by the SAC, it becomes clear that the SAC had been of the view that even if there had been violations, such violations deserved to be ignored, because ignoring such violations would make available more accommodation to the needy persons within the city of Guwahati. This logic, to say the least, is nothing, but arbitrary inasmuch as the violations cannot be condoned unless provided for in Bye-laws. If such a logic, as assigned by the SAC, is accepted, the logical extension would be that notwithstanding any amount of violation or notwithstanding the fact as to how grave the violation is, so long as the violation meet the need of the city, such violation shall be allowed. If such a strange logic is acceded to by this Court, it would make all efforts, which this Court has been making, in the light of various directions, which have been issued, from time to time, in WP(C) No. 1200/2006, nugatory, futile and meaningless. Such an approach would also throw to the wind the norms and requirements, which are set by the GMC Building Bye-laws, 1998. In fact, acceding to the reasons assigned by the SAC would amount to perpetuating an arbitrary and ex facie mala fide decision, which this Court cannot afford to do. 21. Turning to the question of parking norms, it needs to be noted that Appendix-III makes it clear that violation of parking norms cannot be compounded at all. The SAC has ignored the violation of parking norms too on the ground that the petitioners have agreed to provide car parking space on the ground floor. There is no finding by the SAC that the space, to be provided at the ground floor, will bring car parking space within the permissible norms. The SAC has ignored the violation of parking norms too on the ground that the petitioners have agreed to provide car parking space on the ground floor. There is no finding by the SAC that the space, to be provided at the ground floor, will bring car parking space within the permissible norms. Instead of straightaway meeting the issue as to whether the space provided, at the ground floor, for car parking, would be within the permissible limit of law or not, the SAC, once again, and, as before, tried to skirt the issue by giving a strange logic and the logic is that the car parking arrangement would help removal of illegal car parking and, thus, help in easing the traffic congestion in the busy commercial area of the city. Neither the decision of the SAC nor the decision of the Administrator even faintly indicate that there is no violation of the parking norms in the proposed construction of the petitioners. In fact, Appendix-III shows that when the car parking norms are violated, permission for construction cannot be allowed. In the present case, neither the SAC nor the Administrator says or opines that there is no violation of car parking norms. Both the authorities aforementioned ignored the violations in respect of the space to be provided for car parking by merely saying that the ground floor has been agreed to be used by the petitioners as their car parking space, but these authorities remained completely silent as to whether the requirements of car parking norms would be met if the ground floor is made available only for car parking. As far as the Administrator is concerned, the order, passed by the Administrator, does not give faintest indication as to whether the directions given by him bring the violations, committed by the petitioners, within the permissible limits and/or violations are compoundable. A direction given by any authority, either against the existent materials on record or bereft of reasoning, cannot but be treated as arbitrary and mala fide; such a direction does not vest any right in the beneficiary of such an order to claim enforcement of such an order and that too, by invoking the High Court's jurisdiction under Article 226. 22. Situated thus, it is clear that the decisions of the SAC and also of the Administrator are completely arbitrary. 22. Situated thus, it is clear that the decisions of the SAC and also of the Administrator are completely arbitrary. Such a decision and/or order cannot clothe any person, such as, the present petitioners, with any enforceable right to invoke jurisdiction of this Court under Article 226. 23. What emerges from the above discussion is that the petitioners have not complied with the requirements and norms, which the GMC Building Bye-laws, 1998, required them to follow. The petitioners do not contend that the violations, which even the orders of the SAC as well as the Administrator had acknowledged, were compoundable and/or that the violations were within the norms set for compounding of such violations. In such circumstances, when the respondents, particularly, respondent No. 3, has refused to grant permission, such rejection of permission cannot be interfered with. Though the Commissioner, GMC, is bound to follow the order of the SAC and/or the Administrator, as the case may be, it is of utmost importance to note that when an authority, such as, the SAC and/or the Administrator, had passed orders, which are palpably illegal in nature, such order(s) cannot be enforced by taking recourse to Article 226. We, therefore, see no reason to allow these writ petitions. We may also pause here to point out that since we are satisfied that in the cases at hand, the petitioners could not have been granted permission in terms of even GMC Building Bye-laws, 1998, we do not deem it necessary to enter into the discussion of the question as to whether the petitioners, in the light of the order, passed by the High Court, on 21.11.2006, in WP(C) No. (taken up) 1200/2006 are required to make fresh application(s) for permission or not. 24. In the result and for the reasons discussed above, both these writ petitions fail and the same shall accordingly stand dismissed. No order as to costs.