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2021 DIGILAW 57 (GAU)

Paritosh Das v. State of Assam

2021-02-01

PRASANTA KUMAR DEKA

body2021
ORDER : Prasanta Kumar Deka, J. 1. Heard Mr. S. Chauhan, learned counsel for the petitioner. Also heard Mr. B Goswami, learned Additional Advocate General for the respondent Nos. 1, 2, 5, 6 and 7, Ms. N Saikia, learned counsel for respondent No. 8 and Ms. K. Phukan, the learned State Counsel for the respondent Nos. 3 and 9. 2. This writ petition is against the order dated 18.05.2017 passed by the Commissioner, Guwahati Municipal Corporation, (GMC) in a representation submitted by the petitioner on 07.01.2017 before the Additional Chief Secretary to the Government of Assam, Guwahati Development Department which was subsequently forwarded to the Commissioner, Guwahati Municipal Corporation for necessary action. The private respondent No. 8 on 12.07.2016 made a specific complaint to the Commissioner, GMC that the petitioner had undertaken unauthorized construction over a plot of land covered by Dag No. 717, KP Patta No. 160 under village - Bormotoria in Beltola Mouza. On the basis of the said complaint, notice was issued to the petitioner directing him to produce the NOC and the approved plans in respect of the alleged unauthorized construction. Though the petitioner took time initially but finally on 15.09.2016 submitted his reply thereby stating his occupation over the land but, the petitioner failed to produce the NOC and the approved plans in respect of the alleged unauthorized construction. 3. The GMC authority being satisfied that the petitioner failed to produce any approved plans, a notice was issued to show cause as to why the unauthorized construction should not be demolished. In reply to the said notice, the petitioner took the stand that he had purchased the land on 05.01.1983. Over the said plot of land he initially constructed the thatched house inasmuch as the said land upon which he carried out construction was Government land and thereafter he developed the said house by erecting RCC posts and shutters. The said house had been assessed to property tax and connected with the electricity and also taken a trade license from the GMC to run his commercial activities. It was also stated in the said reply that he applied to the concerned authority for settlement of the land under his possession. 4. While passing the impugned order, the Commissioner, GMC accepted the admission of the petitioner and held that the construction he undertook was illegal as no permission was obtained from the GMC. It was also stated in the said reply that he applied to the concerned authority for settlement of the land under his possession. 4. While passing the impugned order, the Commissioner, GMC accepted the admission of the petitioner and held that the construction he undertook was illegal as no permission was obtained from the GMC. It is also apparent from the impugned order dated 18.05.2017 that the GMC authority had verified the claim that the land over which the petitioner constructed the house is a Government land private land. As per the report to the Commissioner, GMC by the Circle Officer, Dispur Revenue Circle it was opined that the said land was a private land covered by Dag No. 717, KP Patta No. 160. Under Section 337 of the Gauhati Municipal Corporation Act, 1971, the Commissioner is authorized to issue a written notice against any illegal construction and its operation of construction to be discontinued from the date of service of notice and under Section 337(3) of the Act, the Commissioner has the jurisdiction to remove the work in question or such alteration as he deemed necessary. 5. In pursuance to the order dated 16.11.2020 of this court, Mr. Goswami had obtained necessary instruction. From the report of the Circle Officer, which was received by Zonal Engineer, GMC, leaving aside Dag Nos. 189 (O) and 717 (N) the rest of the land covered by Dag Nos. 190 (O), 174(O), 176 (O) are Government land and the former two are Kheraj Periodic patta land. An unregistered sale deed was also submitted to the GMC by the petitioner, Paritosh Das purportedly executed by the respondent No. 8 which shows that the land covered therein falls within Dag Nos. 189, 190, 174 and 176. 6. Ms. Saikia referring to an additional affidavit filed by the respondent No. 1 pointed out the field enquiry report in T.S. 22/2010 pending in the court of learned Munsif No. 2, Kamrup(M) at Guwahati. It would not be out of place to mention herein that this particular suit was filed by the respondent No. 8 for ejectment of the petitioner under the Rent Control Act. As per the said enquiry report, land measuring 1 Katha 1 Lecha covered by Dag No. 171 KP Patta No. 160 is under possession of the petitioner. It would not be out of place to mention herein that this particular suit was filed by the respondent No. 8 for ejectment of the petitioner under the Rent Control Act. As per the said enquiry report, land measuring 1 Katha 1 Lecha covered by Dag No. 171 KP Patta No. 160 is under possession of the petitioner. Land measuring 1 Bigha 0 Katha 19 Lechas covered by Dag No. 717 K.P. Patta No. 160 is under possession of the respondent No. 8. 7. Mr. Chouhan submits that though the said report of the Circle Officer was submitted in the court of learned Munsiff No. 2, Kamrup (M), however the Circle Officer has not yet been cross-examined. Mr. Goswami, learned counsel on the other hand referring to the impugned order in the writ petition i.e. order dated 18.05.2017 passed by the Commissioner, GMC, Guwahati and relying the instructions received along with the connected affidavit filed by the GMC, submits that the GMC is not concerned in respect of the classification/category of the land under the possession of the petitioner nor the land under the possession of the respondent No. 8. GMC is concerned about the illegal construction purportedly carried out by the petitioner and failure of the petitioner to produce necessary building permission while the GMC sought for its production by the petitioner. The impugned order arose out of the appeal preferred by the petitioner to the Additional Chief Secretary, Guwahati Development Department, Government of Assam whereby the petitioner sought for stay of the notice issued by the Commissioner, GMC dated 14.12.2016 directing demolition of the unauthorized construction. The said notice was the 5th notice within a spell of one year after reassessment of the GMC holding number and the residential holding number of the petitioner. 8. On perusal of the plaint in T.S. 22/2013, the schedule of the suit premises consists of thatched house over land measuring 1 Katha of land and gumti house. The respondent GMC took action on the basis of a complaint lodged by the respondent No. 8 when the petitioner started construction over the land under his possession and on the basis of the said complaint the impugned order was passed. The said T.S. 22/2013 is yet not decided. 9. The respondent GMC took action on the basis of a complaint lodged by the respondent No. 8 when the petitioner started construction over the land under his possession and on the basis of the said complaint the impugned order was passed. The said T.S. 22/2013 is yet not decided. 9. In the impugned order, the Commissioner GMC came to the finding that as the petitioner failed to produce the NOC nor any approved plans in respect of the construction so undertaken admittedly, as such it was held to be unauthorized construction. Further, it was pointed out that even erection and use of temporary building has to be permitted by the Commissioner, GMC under the statute. It was further held that the constructed portion though has been assessed to tax by GMC authority that cannot be a bar for issuance of demolition notice. The assessment of a building to tax cannot legalise an illegal and unauthorisedly constructed building. Assessment of tax cannot operate as estoppel against the statutory power conferred on the statutory authority relating to demolition of building. The Commissioner also considered the prayer of the petitioner for regularization of the construction but held that the same cannot be done in violation of the statutory provisions of law. 10-11. It is submitted by Mr. Chauhan, the learned counsel for the petitioner that the said move for demolition of the said construction carried out by the petitioner was initiated by the respondent GMC at the initiative of the private respondent No. 8. I have perused the affidavit-in-opposition filed by the private respondent and it is an admitted fact that the private respondent had raised the complaint before the GMC as against the unauthorized and illegal construction. The private respondent No. 8 has annexed the copy of the plaint in Title Suit No. 22/2013 presently pending in the court of learned Munsiff No. 2 Kamrup (M) at Guwahati. The private respondent filed the same for ejectment and recovery of khas possession by evicting the defendant from the suit premises and for realization of arrear rent. From the averment made in the said plaint it is found that the petitioner occupied a small gumti of about 10 feet X 8 feet on the plot of the land belonging to the said private respondent No. 8. From the averment made in the said plaint it is found that the petitioner occupied a small gumti of about 10 feet X 8 feet on the plot of the land belonging to the said private respondent No. 8. The schedule of the said plaint shows that the petitioner was a tenant possessing a thatch house measuring 10 feet X 8 feet with a small gumti covering an area of about 1 katha. From the impugned order dated 18.05.2017 it is found from the contention of the petitioner that he developed the house by erecting RCC posts and shutters. 12. Without entering into the merit or the relief sought for therein the suit, it is an admitted position that as per the impugned order, the petitioner had carried out the construction with RCC post and shutters. If the nature of the constructions changed from the katcha house as pleaded in the plaint in the suit, the same amounted to construction of permanent nature and under such circumstances, the GMC authority has the jurisdiction under Section 337 of the Gauhati Municipal Act, to cause demolition subject to verification of the building permit if any. 13. In view of the aforesaid discussion, I do not find any merit in this writ petition. Accordingly, it is held that the impugned order was passed duly after hearing the petitioner and on consideration of the defence taken by the petitioner. 14. It is submitted by Mr. Chauhan that the petitioner has been carrying business from the constructed structure which he undertook and as such he sought some time to take necessary steps for demolition. In view of the submission of the learned counsel for the petitioner GMC authority should not carry out the demolition of the unauthorized construction at least, for a period of 30 days from today. It is clarified that issue of ejectment of the petitioner from the tenanted premises is not decided but the demolition of the unauthorized construction only and the former shall be decided by the Civil Court in Title Suit No. 22/2013 pending in the court of learned Munsiff No. 2, Kamrup (M) at Guwahati. 15. With the said observation this writ petition stands disposed of. 16. Interim order if any stands vacated.