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2018 DIGILAW 841 (GAU)

RANJU AGARWAL v. STATE OF ASSAM

2018-05-22

MANOJIT BHUYAN

body2018
JUDGMENT AND ORDER : 1. Heard Mr. N. Dutta, learned senior counsel representing the petitioners assisted by Mr B. Dutta, Advocate. None to represent the State Respondents who are impleaded as respondent nos. 1, 2, 3 and 4. Mr. D. Mozumdar, learned senior counsel represents respondent no. 5, assisted by Mr. S. Biswas, Advocate. Respondent no. 7 is represented by Mr. K.N. Choudhury, learned senior counsel assisted by Mr. V.K. Singh, Advocate. Mr. V.K. Singh also represents respondent nos. 8 and 9 whereas respondent no. 10 is represented by Mr. R.J. Baruah, Advocate. There is none to represent respondent no. 11, though served. 2. Petitioners puts to challenge the Building Construction Permission dated 12.05.2014 and the subsequent Renewal Permission dated 05.02.2016, issued under the hand of the Chairperson, Tinsukia Municipal Board in favour of Gayatri Devi Choudhury (died on 07.11.2015) primarily on grounds that the same had been issued in violation of the provisions of the Assam Notified Urban Areas (Other than Guwahati) Building Rules, 2014 (in short Building Rules, 2014). 3. This Court has been called upon to decide on the locus standi of the petitioners in maintaining the present writ petition as well as to answer whether the Building Rules, 2014 has any application in the facts and circumstances of the case. This Court is also called upon to decide whether even if the Building Rules 2014 has any application to reinforce the challenge made by the petitioners, can any interference be made to the stage of the construction of the Building as obtaining today. 4. Relevant dates which must be noticed for adjudication of this case are as follows: 07.02.2014: Application by Gayatri Devi Choudhury to Tinsukia Municipal Board for permission to construct G+4 storied building for residential/commercial purposes with basement parking. 03.03.2014: Assam Gazette Notification bringing into force the Assam Notified Urban Areas (Other than Guwahati) Building Rules, 2014. 11.04.2014: Date on which the processing of the application for permission is stated to have been completed, according to Respondent No.5. 19.04.2014: Date on which the Tinsukia Municipal Board is stated to have received the 2014 Rules from the Director, Town & Country Planning, Assam. 12.05.2014: No Objection Certificate of the Tinsukia Municipal Board permitting construction of building in favour of Gayatri Devi Choudhury, valid for one year from date of issue. 07.11.2015: Demise of Gayatri Devi Choudhury. 19.04.2014: Date on which the Tinsukia Municipal Board is stated to have received the 2014 Rules from the Director, Town & Country Planning, Assam. 12.05.2014: No Objection Certificate of the Tinsukia Municipal Board permitting construction of building in favour of Gayatri Devi Choudhury, valid for one year from date of issue. 07.11.2015: Demise of Gayatri Devi Choudhury. 05.02.2016: Renewal Permission for construction of the building in favour of Gayatri Devi Choudhury, renewed up to 12.05.2018. 26.12.2017: Objections against construction of the building, filed by petitioner no. 2, addressed to (i) the Chairman, Tinsukia Municipal Board, (ii) the Deputy Commissioner, Tinsukia. 08.01.2018: Letter of the District Development Commissioner, Tinsukia, Office of the Deputy Commissioner, Tinsukia, addressed to (i) the Chairperson, Tinsukia Municipal Board, (ii) the Chairman, Tinsukia Development Authority, mentioning about the complaint petition and directing taking of action to stop further construction work of the building. 09.01.2018: Notice issued from the Office of the Deputy Commissioner, Tinsukia to (i) the Chairperson, Tinsukia Municipal Board, (ii) Sri Ram Prakash Agarwal (petitioner no. 2 herein) and (iii) M/s Dayal Construction (respondent no. 6 herein), for hearing on 30.01.2018 in connection with TDM Case No. 8 of 2018 regarding alleged illegal construction of the building. 11.01.2018: Letter/Report of the Chairman of Tinsukia Municipal Board, addressed to the District Development Commissioner, Tinsukia mentioning that the complaint of petitioner no. 2 is baseless. Also, that the Drawing of the commercial building had been renewed and made valid upto 12.05.2018 as per Section 20 of the Building Rules, 2014. 16.01.2018: Letter of District Development Commissioner, Tinsukia and addressed to the Chairperson of Tinsukia Municipal Board permitting continuation of construction work by respondent no. 6 on the basis of the Enquiry Report dated 11.01.2018. 25.01.2018: Institution of the present writ petition i.e. WP (C) 418/2018. 5. The relevant dates having been noticed, as above, the basic facts may be traversed. To be borne in mind, the primary challenge made by the petitioners are in respect of granting of construction permission by the Tinsukia Municipal Board without maintaining the side setbacks for a building, as required under Rule 67 (3) of the aforesaid Building Rules, 2014. 5. The relevant dates having been noticed, as above, the basic facts may be traversed. To be borne in mind, the primary challenge made by the petitioners are in respect of granting of construction permission by the Tinsukia Municipal Board without maintaining the side setbacks for a building, as required under Rule 67 (3) of the aforesaid Building Rules, 2014. Additionally, reference is also made to the action of the Tinsukia Municipal Board in granting permission and approving the Plan and Design despite the fact that the approved Floor Area Ratio (FAR), standing at 318 as well as the Maximum Coverage, standing at 63.43% are in excess of the maximum limit permitted under Rule 74 (2) of the aforesaid Building Rules, 2014. The permission so granted to Gayatri Devi Choudhury was for construction of a residential/commercial complex over a total land area of 7200.00 Sqft. (0 Bigha-2 Katha- 10 Lechas). The permission for construction of the RCC building involved a Basement for parking, the Ground Floor up to 4th Floor, with the total height of the building standing at 19.36 meters (63 ft. 6 inches) from the Basement (Road Level) up to the Slab of the 4th Floor. The side setback on the Northern side is maintained at 3 ft. (0.91 meters) and on the Southern side at 3 ft. 3 inches (1 meter). On the above, case laid out by the petitioners are that the Building Permission and the approval of the Plan and Design of the Building by maintaining the aforesaid side setbacks on the Northern and Southern side of the building are contrary to the minimum side setbacks as required to be maintained under Rule 67 of the aforesaid Building Rules, 2014. Further, whereas the maximum permitted Floor Area Ratio (FAR) is to be maintained at 225 and Maximum Coverage to be maintained at 40%, the building permission granted marks a clear departure from Rule 74 (2) of the Building Rules, 2014. Before proceeding further, it would be relevant to extract the provisions of Rule 67 and Rule 74 (2) of the Building Construction Rules. "67. Regulation for commercial buildings.---- The regulations for commercial buildings shall be as specified below --- (1) Minimum plot size should be 167.4 sq. m., while minimum width of plot should be 7.5m. Before proceeding further, it would be relevant to extract the provisions of Rule 67 and Rule 74 (2) of the Building Construction Rules. "67. Regulation for commercial buildings.---- The regulations for commercial buildings shall be as specified below --- (1) Minimum plot size should be 167.4 sq. m., while minimum width of plot should be 7.5m. (2) When setback is up to the height of 11.5 m,-- (a) minimum front setback of 3.0 m with 1.5 m cantilever in upper floor; (b) minimum side setback a minimum of 1 m has to be maintained in each side which can be relaxed to only one side if the adjoining plot owner agrees to have a common wall with his building; (c) minimum Rear Setback Up to plot depth of 18 m, should be 1.5 m. while above plot depth of 18 m, should be 3.0 m with maximum 1.5 m projection on the upper floors; (d) if any part of the ground floor or any other upper floor is used for residential purpose or for human habitation, the side setback of the building shall be as per the high density residential zones; (e) a plot abutting a street with a width of above 15 m, the front setback shall be calculated according to the width of the abutting street. (3) Additional rear and side setback for a building when height is above 11.5 m shall be as follows:- (a) if the height is from 11.5 m up to 15 m, the rear setback shall be 3 m and side setback shall be 1.5 m; (b) side and rear setback should be increased by 0.3 m for every 1.5 m of additional height of the building in addition to the setbacks already prescribed for a building of 15 m height up to a maximum of 1.5 m of additional setbacks on both rear and sides. 74. FAR, Coverage and width of access.--- .................................................................................................................................................................................... (2) Commercial and Residential-Commercial (Mixed Use) Plot size (sq.m) Maximum FAR Maximum Coverage (%) Upto 300 200 50 301 to 500 200 45 Above 500 225 40 6. It is not in dispute that construction of the building had commenced in December, 2017 and as on this date the RCC building has been constructed up to a height of 12.94 meters (42 ft. 6 inches) as against the approved total height of the building of 19.36 meters (63 ft. It is not in dispute that construction of the building had commenced in December, 2017 and as on this date the RCC building has been constructed up to a height of 12.94 meters (42 ft. 6 inches) as against the approved total height of the building of 19.36 meters (63 ft. 6 inches). It is also seen that having regard to Rule 67, as extracted above, the side setbacks maintained on both Northern and Southern side are substantially in conformity with the Rules, at least up to the height of 11.5 meters of the Building. Rule 67 (2) (b) requires a minimum side setback of 1 meter which has to be maintained in each side. If the provisions of the Building Rules, 2014 is applied in the instant case, the permission so granted will be contrary to Rule 67 (3) in respect of the Building above the height of 11.5 meters up to 15 meters, where a minimum side setback at 1.5 meters has to be maintained as well as in respect of the minimum side setback which has to be maintained for a building constructed above the height of 15 meters. In this connection, it is placed on record that since the basis and primary challenge, as appearing from the writ petition, is to the alleged violation of Rule 67 (3) of the aforesaid Building Rules, 2014, as such, adjudication of this case is confined to the said issue only. 7. As noticed above, application for permission was made on 07.02.2014 and by the time permission was granted by the Tinsukia Municipal Board on 12.05.2014, the aforesaid Building Rules, 2014 had come into force i.e. on and from 03.03.2014. On behalf of the contesting respondents it is submitted that since application for permission was made on 07.02.2014, as such, the Building Rules which was in existence prior to enactment of the Building Rules, 2014 would govern the case to determine the legality and validity of the Permission so granted. To take it further, on behalf of the Tinsukia Municipal Board, it is urged that the Building Rules, 2014 is without applicability. To take it further, on behalf of the Tinsukia Municipal Board, it is urged that the Building Rules, 2014 is without applicability. Justification is made that the said Rules was brought to the knowledge of the Tinsukia Municipal Board by the Director of Town & Country Planning vide letter dated 24.03.2014 (received on 19.04.2014), by which time all applications for building permission (including the application of Gayatri Devi Choudhury) which were received before the aforesaid date of 19.04.2014, had already been sanctioned by the authority concerned. This being the position and having regard to the fact that application for permission was made on 07.02.2014 and that the Chairman of Tinsukia Municipal Board had approved the building permission on 11.04.2014, which is a date prior to having knowledge of the new Building Rules, 2014, contention made is that the said Building Rules, 2014 cannot be made applicable and acted upon to further the challenge made by the petitioners. 8. The answer to the issue as to the applicability/non-applicability of the Building Rules, 2014, in the facts and circumstances of the case, is not far to seek. In Howrah Municipal Corporation and Others v. Ganges Rope Co. Ltd., reported in (2004) 1 SCC 663 , the Supreme Court was in seisin of a matter where sanction was sought by the Company for construction of additional 3 (three) floors to an existing complex, during the pendency of which an amendment was brought into the Howrah Municipal Corporation Act, 1980 prohibiting multi-storied construction above one plus two floors on G.T. Road, Howrah. The learned Single Judge of the High Court of Calcutta held that the prayer for grant of sanction for additional three floors cannot be granted as in the meantime the amendment, as afore-stated, was brought in. However, the Division Bench ruled otherwise, which the Supreme Court interfered by holding that the Division Bench was clearly in error in reaching the conclusion that the unamended rules and regulations in force on the date of making application seeking sanction for additional construction would govern the matter of sanction and that subsequent amendment cannot take away the alleged vested right of the Company for seeking the sanction. Having set aside the direction made by the Division Bench of the High Court of Calcutta, the Supreme Court held that merely by submitting application for sanction for construction, no vested right is created in favour of any party by operation of the statutory provisions. Further, the Building Rules or Regulations in force at the time of sanction would govern the subject of sanction and not the Rules and Regulations existing on the date of application for sanction. Relying on the ratio laid down in Usman Gani J. Khatri of Bombay v. Cantonment Board, (1992) 3 SCR 1 , the Supreme Court reiterated that Builders do not acquire any legal right in respect of the plans until it is sanctioned in their favour. Further, the amendment brought to the Building Rules would apply to all pending applications for sanction. The Supreme Court also held that there was no manner of doubt that the Building Rules with prohibition or restrictions on construction activities as applicable on the date of grant or refusal of sanction would govern the subject matter and not the Building Rules as it existed on the date of application for sanction. 9. Tested on the aforesaid premises, it is seen that although application for sanction of permission was submitted before the authority concerned on 07.02.2014, the Permission for Construction was granted on 12.05.2014. Between the aforesaid two dates, the Building Rules, 2014 came into force on 03.03.2014. Accordingly, there cannot be a second argument, save and except that the Building Permission granted to Gayatri Devi Choudhury on 12.05.2014 was subject to the provisions of the Building Rules, 2014. The Rules or Regulations that existed on the date of application i.e. 07.02.2014 would be of no relevance. 10. A very pertinent aspect on the issue of applicability/non-applicability of the Building Rules, 2014 must be noticed. Prior to the enactment of the Building Rules, 2014, the Regulations holding the field was the Uniform Zoning Regulations, framed under sub-section (2) of Section 10 of the Assam Town & Country Planning Act, 1959 (as amended) and the Assam Town & Country Planning (Amendment) Act, 1994, read with the Assam Town & Country Planning (Publication of Master Plan and Zoning Regulations) (Amendment) Rules, 1995. The said Uniform Zoning Regulations was made applicable for all the Towns having approved Zoning Regulation except Guwahati. The said Uniform Zoning Regulations was made applicable for all the Towns having approved Zoning Regulation except Guwahati. Sub-clause E.5 of Clause 11.4 thereof lays down the Regulations for Commercial Use in Commercial Zone. The minimum side setbacks which are to be maintained in terms of the Uniform Zonal Regulations are no different from the minimum side setbacks to be maintained under the Building Rules, 2014. To be precise, under the aforesaid Regulations, a minimum of 1.0 meter has to be maintained in each side up to the height of 11.5 meters and for height of a building from 11.5 meters up to 15 meters, a side setback of 1.5 meters has to be maintained. For a building above the height of 15 meters, it is also the same as provided under the provisions of the Building Rules, 2014. This being the clear picture, the contention raised by the contesting respondents that the Building Rules, 2014 is without applicability, do not appear to be of any material significance. Be that as it may, I have already held that Building Rules, 2014 would govern the case in hand. Even if an extreme view is taken that the Building Rules, 2014 is not applicable, then also the Uniform Zoning Regulations which existed on the date of submitting the application for permission do not empower the Tinsukia Municipal Board to grant permission by ignoring the provisions relating to the minimum side setbacks provided under Uniform Zoning Regulations. In any view of the matter, the Tinsukia Municipal Board flouted Rule 67 (3) of the Building Rules, 2014 while granting permission and approving the plan and design of the RCC building in favour of Gayatri Devi Choudhury. 11. The other issue that remains to be considered is on the point of locus standi of the petitioners to maintain the present writ petition. At paragraph 3 and 4 of the writ petition it is stated that the construction made by respondent no. 6 (the Builder) and respondent no. 7 (Husband of Late Gayatri Devi Choudhury) on the plot of land covered by Dag No. 829, Periodic Patta No. 450 is the land adjacent to the southern boundary of the petitioners house. It is also stated that while carrying out the construction works, the said respondent nos. 6 (the Builder) and respondent no. 7 (Husband of Late Gayatri Devi Choudhury) on the plot of land covered by Dag No. 829, Periodic Patta No. 450 is the land adjacent to the southern boundary of the petitioners house. It is also stated that while carrying out the construction works, the said respondent nos. 6 and 7 had excavated soil just on the side of the boundary wall of the petitioners house, causing damage and collapse of a substantial portion of the southern boundary wall. The said statements are not specifically and categorically denied or controverted by the contesting respondent nos. 5 and 7. 12. Any construction invading the rights of a neighbour in furtherance to a plan sanctioned by the Municipality which is not in conformity with the building regulations, cannot operate to non-suit the neighbour in maintaining a writ petition. The petitioners herein, as residents in the adjacent area, has the right to compel the Tinsukia Municipal Board to perform duty imposed by the Building Rules, 2014. It is to be borne in mind that the paramount consideration of regulatory provisions for construction activities are public interest and convenience. If sanction is given to build by contravening Rules or Regulations, the jurisdiction of the Courts can be invoked by a resident of the area who alleges his rights being affected by action of an authority whose duty to perform according to the statue is irregularly or illegally demonstrated. In the facts and circumstances, the challenge to the locus of the petitioners is not found tenable. The petitioners are well within their rights to maintain the present petition. 13. In view of the discussions and findings above, this Court interferes with the Building Permission/Renewal Permission made in the name Gayatri Devi Choudhury by making a declaration that the same can be construed to be a valid permission only to the extent of the height of 11.5 meters of the Building in question and not to any further height. Illegality being incurable, the Tinsukia Municipal Board shall now take appropriate steps to ensure strict compliance of Rule 67 (3) of the Building Rules, 2014 and in this respect may take appropriate steps by way of causing demolition to that part of the Building in question which offends and is in violation of the mandate of the said Rule 67 (3) of the Building Rules, 2014. The natures gift of sunlight and air being integral to human existence, the same cannot be replaced by compounding a violation by means of monetary consideration. The Building in question has to be cut to size to bring it within the statutory framework/dimension of Rule 67 (3) of the Building Rules, 2014 by doing away with any violation thereof. 14. To the extent above, the Writ petition stands allowed. No cost.