Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 134 (GAU)

HIMANGSHU PAUL CHOUDHURY v. STATE OF ASSAM

2014-02-03

A.M.SAPRE, UJJAL BHUYAN

body2014
JUDGMENT A.M. Sapre, J. This is an intra-court appeal filed by the writ petitioner of WP(C) 7379/2013 under Rule 2(3) of Chapter V-A of the Gauhati High Court Rules against the order dated 27.01.2014 passed by the learned Single Judge in abovementioned writ petition. By impugned order, the Single Judge dismissed the appellant’s writ petition and declined to grant any relief to the appellant. So the question which arises for consideration in this appeal is whether learned Single judge (writ court) was justified in dismissing the appellant’s writ petition? Facts of the case lie in a narrow compass. They however need mention in brief to appreciate the controversy involved in the writ and now in this appeal. The appellant claims to be the owner of the building situated at Link Road, Lane no 1/A Silchar. According to him, he constructed this building after obtaining due sanction on 7.5.2010 from Municipal Board. However, three complaints were filed by three different persons to the Chairman – Silchar Municipal Board (respondent herein) complaining therein that the appellant had constructed the building contrary to and in violation of the sanction map read with the Rules/Regulations applicable for construction of building and hence such illegal portion of the building should be demolished. These complaints were entertained by the Chairman and accordingly appellant was noticed. He filed reply and contested the complaint. The inquiry was accordingly held by visiting the disputed building in question with a view to find out as to whether any construction was made by the appellant contrary to and in violation of the sanctioned plan and if so to what extent ? The Chairman then gave opportunity to the parties and by order dated 30.11.2013 (annexure-A) recorded the finding that appellant had made some portion in the building contrary to and in violation of the sanctioned map read with the relevant Rules/Regulations and therefore such portion in the building which was unauthorized and constructed contrary to and in violation of the sanctioned map/Rules/Regulations has to be demolished. The Chairman accordingly directed removal/ demolition of such portion as specified in the order. This is what was held and directed by the Chairman in the concluding Para of his order. “I have heard the submission of all the parties. However, as per the desire of the O.P. and to ensure justice a further enquiry was made on the field through the Asstt. This is what was held and directed by the Chairman in the concluding Para of his order. “I have heard the submission of all the parties. However, as per the desire of the O.P. and to ensure justice a further enquiry was made on the field through the Asstt. Engineer and Junior Engineer of the Town & Country Planning, Silchar on 15-11-2013. They also submitted a Site Plan after due verification on 15-11-2013. I have gone through the record and it appears from the various reports of the Field Asstt and the final report that the O.P. constructed the building violating the approved set-back in the northern side, southern side and also the eastern side. It further appears from the site plan submitted by the Engineers dated 15-11-2013 that the O.P. erected 1.53 metre wide cantilever in the eastern side and also extended the building in the northern side and also a portion of eastern side keeping the set-back only 0.45 metre instead of approved set-back of 1.52 metre but the O.P. constructed the building keeping set-back of 1.30 metre. As the O.P. constructed the building in clear violation of the approved set-back as per building construction permission vide No.SDA.16/BP/2010-11/6 dated 07-05-2010, the O.P. is hereby directed to demolish the unauthorized portion of construction as aforementioned failing which this authority will dismantle such portion of construction and the expenses for such demolition shall be borne by the O.P. However, this order will be given effect to after 15 days from the date of this order in compliance with the Hon’ble High Court’s order dated 05-10-2013. Informed all parties accordingly.” The appellant felt aggrieved of the aforesaid order of the Chairman filed the writ petition out of which this appeal arises. The petition was contested by the respondent supporting the order of the Chairman. The writ court (Single Judge) by impugned order dismissed the petition and in consequence upheld the Chairman’s order. It is against the order of the writ court; the petitioner felt aggrieved and filed this intra court appeal. The petition was contested by the respondent supporting the order of the Chairman. The writ court (Single Judge) by impugned order dismissed the petition and in consequence upheld the Chairman’s order. It is against the order of the writ court; the petitioner felt aggrieved and filed this intra court appeal. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow this appeal in part and while setting aside the impugned order as also the order dt 7.12.2013 passed by the Chairman in part remand the case to the Board for deciding the issue of imposition of penalty on the appellant afresh as directed below in our order. The issue involved in this appeal is required to be decided in the light of Section 177 of The Assam Municipal Act 1956. Section 177 reads as under:- “177. Power of Board in case of disobedience.- (1) Should a building be begun, materially altered or erected,- (a) Without sanction as required by Section 171(1); (b) Without notice as required by Section 171(2); or clause (iii) of Section 302; or (c) When sanction has been refused; or (d) In contravention of the terms of any sanction granted; or (e) When the sanction has lapsed; or (f) In contravention of any bye-laws made under Section 302, clause (v); the Board may, by notice to be delivered within a reasonable time, required the building to be altered or demolished as it may deem necessary, within the space of thirty days from the date of the service of such notice: Provided that no such notice shall issue in respect of the contravention of any bye-law the observance of which has been dispensed with under Section 173: Provided also that the Board at a meeting may instead of requiring the alteration or demolition of any such building accept by way of composition such sum as it may deem reasonable. (2) Any person who fails to comply with a requisition issued by the Board under the provisions of sub-section(1) shall be liable to a fine not exceeding fifty rupees and to a further fine not exceeding ten rupees for every day during which the person continues to make such default after service on him of such requisition.” Mere perusal of Section 177 would go to show that it empowers the Board to take action against the owner of the building by directing him to do alteration or to do demolition of the building or direct the owner to pay compensation instead of directing alteration or demolition of the building if it finds that such building was constructed by the owner without obtaining the sanction as required under Section 171 (1), or constructed without notice as required by section 171 (2) or section 302 or constructed after the sanction is refused to him by the Board or constructed in contravention of the sanction granted or constructed after the expiry of the sanction period or constructed in contravention of any bye-laws in force. In other words, once the Board comes to a conclusion on the basis of inquiry conducted as provided under Section 177 that the owner of the building has constructed the building in contravention of any of the 6 clauses i.e. clauses (a) to (f) of Section 177, then it has a power to direct alteration or demolition of such building or direct the owner to pay compensation to Municipal Corporation instead of directing its alteration /demolition. In a case of this nature, in our opinion, it is necessary for the Board to examine as to whether it is a case fit for acceptance of compensation and if so how much from the owner and if not then whether to direct alteration or demolition of such building. If however, the Board comes to a conclusion that having regard to nature of breaches/contraventions and also looking to the nature of construction done, it is a fit case for acceptance of the compensation from the owner then it may not direct its alteration or demolition. What should then be the quantum of compensation payable by the owner alone is the question that need to be gone into. What should then be the quantum of compensation payable by the owner alone is the question that need to be gone into. It would however depend upon the facts of each case and be in the discretion of the Board or if there are any guidelines in force, then according to the guidelines. But, having regard to the nature in which the building was constructed coupled with gravity and the extent of the breach/s, the Board finds that alteration or demolition is the only order that can be passed then the order for either its alteration or demolition as the case may be can be passed. In either case, it must appear from the order, that both the circumstances are considered by the Board with reference to the facts of each case and then direction is issued as to why one is preferred as against the other. Coming now to the facts of this case, we find that having rightly held that the appellant has constructed the building in contravention of the clauses of Section 177, the Chairman straightway proceeded to direct demolition of the building without examining as to whether it was a case where compensation could be accepted and if so how much and if not then to direct its alteration and if so to what extent and manner and if not then to direct its demolition and again to what extent? Since the case was not examined keeping in view these parameters and hence we are inclined to set aside only that part of the order of the Chairman which directs demolition of the building at this stage. So far as the finding on the issue of breach of sanction is concerned, it was not challenged by the appellant and rightly so. Had it been challenged, yet we would have upheld the same being pure finding of fact. We thus uphold the said finding calling no interference. In the light of foregoing discussion, the appeal succeeds and is allowed in part. The impugned order is set aside in part. Similarly the order dated 7.12.2013 (Annexure-A) passed by the Chairman only in so far as it directs demolition of the building in question is set aside. We thus uphold the said finding calling no interference. In the light of foregoing discussion, the appeal succeeds and is allowed in part. The impugned order is set aside in part. Similarly the order dated 7.12.2013 (Annexure-A) passed by the Chairman only in so far as it directs demolition of the building in question is set aside. The case is now remanded to the Board to decide only the question as to what penalty is imposable on the appellant under Section 177 such as whether it is a case for acceptance of compensation from the appellant (owner of the building) and if so how much ? Secondly if this is not a case directing acceptance of the compensation then whether it is a case for alteration of the building, and if so to what extent and thirdly whether it is a case of demolition and if so to what extent? Let the Board decide the matter within 3 months from the date of this order after affording an opportunity to appellant. We however make it clear that we have not examined the case so far as imposition of penalty is concerned, and therefore this order should not influence the Board for deciding the issue of penalty on its merits which should be decided strictly in accordance with law keeping in view our observation made relating to interpretation of Section 177. No cost.