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2017 DIGILAW 1467 (GAU)

Naba Sarma v. Gauhati Municipal Corporation

2017-11-23

HRISHIKESH ROY

body2017
JUDGMENT : Hrishikesh Roy, J. 1. Heard Mr. S.P. Roy, the learned counsel appearing for the petitioner. The Guwahati Municipal Corporation (GMC) is represented by the learned standing counsel Mr. H. Sarma. The respondent No. 2 Anil Kr. Das is the contesting litigant and he is represented by the learned counsel Mr. S. Khound. The petitioner secured permission for construction of the RCC building (Ground+ 2 floors) on the bye lane of Lamb Road, in Ward No. 24 of Guwahati and the revocation of the building permission, under Section 338 of the Gauhati Municipal Corporation Act, 1971 (hereinafter referred to as 'the GMC Act'), is the subject matter of challenge in the present case. Since the impugned cancellation was at the instance of the tenant of the Assam Type house, located on a portion of the purchased land of the petitioner, the tenant has impleaded himself as the respondent No. 2 on 11.5.2011 and is participating in the hearing. 2. The concerned land measures 3.69 Ares and the Annual Patta land was in the name of Rajbihari Das, who had constructed an Assam Type house. The respondent No. 2 Anil Kr. Das was a tenant in the said house (Holding No. 33), standing on the Annual Patta No. 4 (old), Dag No. 912 of Sahar Guwahati. When the land owner died, his son Ramen Das was recorded as the land owner in the revenue records. The son applied for conversion of the annual patta into periodic patta and the Government after due consideration, on 30.1.2000 (Annexure-4), accorded sanction for conversion, on payment of due premium. The applicant deposited the premium and secured mutation for the periodic patta land, as can be seen from the jamabandi (Annexure-5), annexed to the writ petition. The patta holder also applied for transfer of the Holding No. 33, which the tenant was occupying and in the Mutation Case No. 78/2000, transfer of the holding to the son Ramen Das, was permitted on 2.1.2001 (Annexure-6). 3. After securing the permanent right, Ramen Das sold the land to the petitioner under a Regd. Sale deed on 1.8.2008 (An-nexure-7) and that is how the petitioner became the owner of the patta land. The purchaser secured mutation on 20.1.2009 (An-nexure-9), in the Mutation Case No. 94/2008-09, from the Circle Officer, Kamrup (M) and consequently the patta land record was corrected, in the name of the purchaser. 4. Sale deed on 1.8.2008 (An-nexure-7) and that is how the petitioner became the owner of the patta land. The purchaser secured mutation on 20.1.2009 (An-nexure-9), in the Mutation Case No. 94/2008-09, from the Circle Officer, Kamrup (M) and consequently the patta land record was corrected, in the name of the purchaser. 4. After title was secured and mutation was granted, the petitioner made the application on 1.12.2009, to the GMC for securing construction permission for an RCC building and the building NOC was granted to the petitioner, on 22.3.2010 (Annexure-10), by the Commissioner, GMC. 5. When construction was started by the petitioner on the strength of the No Objection Certificate (NOC), the respondent No. 2 as the tenant of the Assam Type house standing on a portion of the land, raised objection against the building permission. The respondent No. 2 also questioned the legality of the land transaction, within 10 years of patta conversion. The tenant Anil Kr. Das then filed the Title Suit No. 469/2008, for declaration and permanent injunction. In that suit, the petitioner as the defendant, made a counter claim for ejectment of the tenant, on the ground of rent default. 6. In the early stage, the Civil Court granted injunction in favour of the tenant but finally the suit of the respondent No. 2 was dismissed on 7.12.2013, by the learned Munsiff No. 1, Kamrup, Guwahati. Because of the rent default of the tenant (plaintiff), the ejectment claim of the defendant was decreed with consequential direction for recovery of vacant possession of the tenanted house and also for recovery of arrear rent, from the plaintiff. The resultant Title Appeal No. 7/2014, filed by the tenant was dismissed on 27.10.17, by the learned Addl. District Judge, No. 1 and thus the decree passed by the Trial Court stood affirmed, by the Appellate Court. 7. Even while the Title Suit No. 469/2008 was pending, the tenant filed a complaint on 20.11.2009 (Annexure-19), before the Dy. Commissioner with the allegation that within 8 years of conversion of annual patta land to the periodic patta category, on 30.1.2000, the patta holder sold the land on 1.8.2008 and such premature sale within ten years of conversion, be declared void in light of the Govt. Circular dated 6.12.2006 (Annexure-20). The concerned Govt. Commissioner with the allegation that within 8 years of conversion of annual patta land to the periodic patta category, on 30.1.2000, the patta holder sold the land on 1.8.2008 and such premature sale within ten years of conversion, be declared void in light of the Govt. Circular dated 6.12.2006 (Annexure-20). The concerned Govt. Circular was intended to temporarily prevent commercial exploitation of converted land for a period of 10 years and accordingly, in case of conversion of annual lease to periodic lease, the Revenue Authorities were directed to make an endorsement in the jamabandi so that transfer of such land for the next 10 years, can be prevented. 8. Following the tenant's complaint, the Dy. Commissioner, Kamrup (M) under Section 151 of the Assam Land & Revenue Regulation, 1886 (hereinafter referred to as 'the Revenue Regulation'), issued the show cause notice on 29.9.2010 (Annexure-21) to both the patta holder and the purchaser to respond why the Sale Deed, patta and the mutation should not be cancelled, on account of the pre-mature sale of the converted land. 9. Aggrieved by the impugned notice, the patta holder and the purchaser jointly filed the WP(C) No. 5807/2010, where they questioned the authority of the Dy. Commissioner under Section 151 of the Revenue Regulation, to interfere with a matter settled by the Government. Since Section 151 power can be invoked only for action taken by a subordinate authority, the jurisdiction of the Dy. Commissioner to cancel the land conversion granted by the Government, was questioned by both parties involved in the sale transaction. 10. In the above matter, the High Court, after due consideration of the challenge, permitted the petitioners to question the authority of the Dy. Commissioner to interfere with the decision of a higher authority i.e. the Government. Thus the WP(C) No. 5807/2010, was disposed on 10.1.2011 (Annexure-22), by directing the Dy. Commissioner to decide on the jurisdiction to act under Section 151 of the Revenue Regulation. Consequently, the petitioner along with his vendor, made the joint response to the show cause notice on 19.1.2011 (Annexure-23). But parties have informed that the matter is yet to be finalized by the concerned authorities, in pursuant to the show cause notice of 29.9.2010 (Annexure-21). 11. Besides all the above steps, the respondent No. 2 made another complaint with the allegation that the petitioner secured the building NOC by suppression and misrepresentation. But parties have informed that the matter is yet to be finalized by the concerned authorities, in pursuant to the show cause notice of 29.9.2010 (Annexure-21). 11. Besides all the above steps, the respondent No. 2 made another complaint with the allegation that the petitioner secured the building NOC by suppression and misrepresentation. Acting on such complaint, the Commissioner, GMC, issued a notice on 20.11.10 (Annexure-24), surprisingly under Section 378 of the GMC Act, where the petitioner was asked to respond as to why, the building NOC should not be revoked. Most conspicuously, neither the nature of suppression/misrepresentation was indicated nor the tenant's complaint was furnished to the petitioner. That apart, the notice issued under Section 378 was wholly misconceived as it related to licenses and written permission, under Part-VII of the GMC Act and has nothing to do with the building permission, granted under Chapter XXVII of the same Act. 12. The petitioner in his response given on 25.11.2010 (Annexure-25), stated that he disclosed all essential particulars and refuted any suppression or misrepresentation, in securing the building permission. He also contended that no clarity on the alleged violation/suppression is indicated in the show cause notice. However, the Commissioner, GMC, under the impugned order of 17.2.2011 (Annexure-26), ordered for revocation of the building NOC, without identifying the nature of the suppression and misrepresentation, by invoking the powers under Section 338 of the GMC Act. 13.1. Assailing the legality of the revocation of the building permission, Mr. S.P. Roy, the learned counsel argues that the impugned order is devoid of reason and on this ground alone, the Commissioner's decision cannot be sustained in law. 13.2. The learned counsel refers to the certified copy of the building permission application made on 27.8.2009 by the petitioner to project that all required particulars were furnished by the applicant and no suppression or misrepresentation can be attributed to the petitioner's application. 13.3. On the absence of any reference to the Title Suit No. 469/2008, filed by the tenant, the learned counsel submits that the applicant is not required to disclose information about pending suit and therefore Mr. Roy argues that it is not a case of suppression. He further submits that the Title Suit No. 469/2008, filed by the tenant has since been dismissed and the counter ejectment claim of the defendant in the suit was allowed by the Trial Court. Roy argues that it is not a case of suppression. He further submits that the Title Suit No. 469/2008, filed by the tenant has since been dismissed and the counter ejectment claim of the defendant in the suit was allowed by the Trial Court. Since the decree against the plaintiff/tenant stood affirmed through dismissal of the Title Appeal No. 7/2014, filed by the aggrieved plaintiff, the counsel submits that even otherwise, the respondent's dismissed suit cannot support the revocation of the building NOC decision of the GMC. 13.4. The inconsistent stand of the respondent No. 2 at various stage is projected by the petitioner, by referring to the next case i.e. the Title Suit No. 26/2011, filed by the tenant for specific performance of the alleged verbal sale agreement, said to be in existence, between the tenant and the patta holder Ramen Das. The counsel then highlighted that the learned Civil Judge No. 1 has rejected the tenant's second suit on 13.3.2015. 14. Representing the GMC the learned counsel Mr. H. Sarma, on the other hand refers to the averments in the counter affidavit filed on 25.3.2011, to contend that the petitioner failed to inform about the pending Title Suit No. 469/2008, filed by the tenant and the injunction order operating in that case. With this projection Mr. Sarma argues that the authorities have rightly revoked the building permission on the ground of material suppression. 15.1. The respondent No. 2/tenant is represented by the learned counsel Mr. S. Khound and he refers to the Govt. Circular dated 6.12.2006 (Annexure-20), to contend that the pre-mature purchase of the converted land is not authorized by law and accordingly, the petitioner's ownership claim as the purchaser, is questioned by the tenant. 15.2. According to the respondent No. 2, the sale transaction between the patta holder and the petitioner, made on 1.8.2008 before the expiry of the 10 year cooling period, is invalid as the annual patta land was converted to periodic patta only on 30.1.2000. On this, Mr. Khound argues that the GMC has rightly intervened with the building NOC. 15.3. The tenant further submits that he is likely to file a Revision Petition against the dismissal of his Title Appeal No. 7/2004 and therefore the counsel argues that the adverse decisions of the Civil Court, should not weigh against him in this case. 16. On this, Mr. Khound argues that the GMC has rightly intervened with the building NOC. 15.3. The tenant further submits that he is likely to file a Revision Petition against the dismissal of his Title Appeal No. 7/2004 and therefore the counsel argues that the adverse decisions of the Civil Court, should not weigh against him in this case. 16. From the above discussion, it becomes clear that the key issue on the power and jurisdiction of the Dy. Commissioner to cancel the Regd. Sale Deed, under Section 151 of the Revenue Regulation, is still undecided, notwithstanding the High Court's direction in the WP(C) No. 5807/2010, and the petitioner's written response on 19.1.2011 (Annexure-23) posing the jurisdiction question to the DC. Moreover the Title Suit No. 469/2008, filed by the respondent No. 2 (tenant) was dismissed, with direction for ejectment of the respondent No. 2, on the counter claim of the petitioner (defendant). This decree passed by the Trial Court was upheld by the Appellate Court, by dismissing the Title Appeal No. 7/2014, filed by the aggrieved plaintiff. The other case i.e. the Title Suit No. 261/2011, for specific performance filed by the respondent No. 2, was also rejected on 13.3.2015 by the learned Civil Judge No. 1. 17. The above developments show that the tenant's challenge against the property owner, is rejected by multiple courts. For instance, the Civil Courts have rejected the tenant's claim to retain possession of the property. Moreover his ejectment was concurrently ordered by the two Courts. But these in a sense, are peripheral issues which may not concern us in this case, where the legality of the revocation of the building permission is to be considered. The absence of any reason whatsoever in the Commissioner's order for revocation of the building permission is the most striking feature of the decision and this goes to the very root of the matter. 18. The Section 338 of the CMC Act enables the Commissioner to revoke building permission but such decision must necessarily contain the reason for the decision. The learned counsel for the GMC has made an attempt to support the decision be referring to the averments made in the counter affidavit and the pendency of the Civil Suit and the injunction order is also pressed home to justify the Commissioner's order. The learned counsel for the GMC has made an attempt to support the decision be referring to the averments made in the counter affidavit and the pendency of the Civil Suit and the injunction order is also pressed home to justify the Commissioner's order. But such subsequent explanation can hardly be accepted to lend support to the impugned decision. In fact not to speak of these explanation, not even an iota of reason is indicated in the impugned order, where a bald statement of suppression is made. 19. The law on the absence of reason is well settled in Commissioner of Police v. Gordhandas Bhanji reported in AIR 1952 SC 16 where it is declared that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. This pronouncement of Justice Vivian Bose has been approved in many subsequent verdicts, of the Supreme Court. 20. If the legality of the Commissioner's order is tested on the above proposition of law, in the absence of any reason for the order, the revocation of the building permission, in my considered opinion is a fatal infirmity and the same cannot naturally be supported on the strength of the subsequent explanation offered in the shape of the affidavit, filed by the authority. 21. In so far as the validity of the sale transaction (before the cooling off period) entered on 1.8.2008, for the converted periodic patta land, the issue is yet to be finally decided, as the petitioner had questioned the jurisdiction of the Dy. Commissioner, to invoke the power under Section 151 of the Revenue Regulation, to interfere with the decision taken by the higher authority namely, the Government. Therefore, even on this front, there is nothing to justify/support, the revocation order. 22. Commissioner, to invoke the power under Section 151 of the Revenue Regulation, to interfere with the decision taken by the higher authority namely, the Government. Therefore, even on this front, there is nothing to justify/support, the revocation order. 22. The certified copy of the application for building permission, filed by the petitioner have been perused by the Court and in the absence of any requirement to disclose information on the pending Civil Suit, the applicant cannot be accused of suppression/misrepresentation, in presenting his application. In any case the Civil suit was concurrently decided against the respondent No. 2 by Courts and further challenge is not yet made by the aggrieved respondent No. 2 23. For the foregoing discussion, my conclusion is that the revocation of the petitioner's building permission was an erroneous decision. Therefore, the impugned order 17.2.11 (Annexure-26) cannot stand and the same is accordingly quashed. With the above declaration, the case stands allowed in the manner indicated. No cost.