WP(C) 4022/2015. Gauhati High Court
| Case Number | WP(C) 4022/2015 |
| Judgement Date | August 31, 2016 |
| Court | Gauhati High Court |
I N THE GAUHATI HI GH COURT
( HI GH COURT OF ASSAM, NAGALAND, MI ZORAM & ARUNACHAL PRADESH)
Writ Petition (C) No. 4022/ 2015
Sri Ritesh Kumar Tibrewala,
Son of Sri Jugal Kishore Tibrewala, Resident of Ganesh Building Compound, Polo Field Road, Tezpur,
District-Sonitpur, Assam.
- Petitioner
- Versus -
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The State of Assam,
represented by the Deputy Secretary to the Government of Assam,
Urban Development Department, Dispur, Guwahati-781006.
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The Chairman,
Tezpur Municipal Board,
Tezpur-784001,
District-Sonitpur, Assam.
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The Deputy Director,
Office of the Town and Country Planning, Tezpur-784001,
District-Sonitpur, Assam.
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The Deputy Commissioner,
District-Sonitpur,
Tezpur-784001, Assam.
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The Superintendent of Police,
Sonitpur, Assam.
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The Officer-in-Charge,
Tezpur Sadar Police Station,
Tezpur, Sonitpur.
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Sri Pradip Tibrewala,
Son of Late Biswanath Tibrewala, Resident of Main Road, Tezpur-784001, District-Sonitpur, Assam.
- Respondents
BEFORE
HON’BLE MR. JUSTI CE A. K. GOSWAMI
For the petitioner : Mr. M. K. Choudhury, Sr. Advocate
Mr. A. Pervez, Advocate.
For respondent Nos.1 & 3 to 6 : Mr. B. J. Ghosh,
Government Advocate, Assam.
For respondent No. 2 : Mr. J. Handique, Advocate.
For respondent No.7 : Mr. K. N. Choudhury, Sr. Advocate,
Mr. A. Tiwari, Advocate.
Dates of hearing : 21.7.2016, 28.7.2016 & 2.8.2016. Date of Judgement & Order : 31.08.2016
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JUDGMENT & ORDER
Heard Mr. M.K. Choudhury, learned senior counsel for the petitioner. Also heard Mr. B.J. Ghosh, learned State counsel appearing for the respondent Nos. 1, 3 to 6, Mr. J. Handique, learned counsel appearing for the respondent No. 2 and Mr. K.N. Choudhury, learned senior counsel appearing for the respondent No. 7.
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The case of the petitioner as projected in the writ petition, inter alia, is that the petitioner is an owner of a plot of land measuring 17½ lechas (2520 sq. ft.), by virtue of execution of a registered gift deed by his father in the year 1986, and the respondent No. 7 owns a plot of land measuring 1 katha 13 lechas (441.210 sq. metre) and is a neighbour in the east-west direction of the land of the petitioner. He received a copy of a caveat dated 2.5.2015 filed under Section 148-A CPC lodged by respondent No. 7. After the caveat was lodged, the respondent No. 7 started development works in the land owned by the respondent No. 7 and smelling a rat, he made enquiries with the respondent No. 7 specifically with regard to the building permission granted. However, the respondent No. 7 declined to show the site plan and the No Objection Certificate (NOC). As the petitioner found that the respondent No. 7 was not following the Municipal norms in the southern and western boundaries, he had written a letter dated
04.06.2015 to the respondent No. 2 with a request to enquire into the matter and to stop construction of the building. Based on that letter, the respondent No. 2 made an enquiry and in the enquiry it was found that there was deviation from the sanctioned plan in the side set back and rear set back as the set back maintained by the petitioner was 1.35 metre and 2.60 metre instead of 1.5 metre and 3 metre, respectively. A notice was issued by the respondent No. 2 on
16.6.2015 to remove the irregularities within 7 days but without removing the same, the respondent No. 7 continued with the construction work and the respondent No. 2 remained as a silent spectator and only as an eye-wash, again issued a letter dated 23.6.2015 directing the respondent No. 7 to comply with the letter dated 16.6.2015. I n the meantime, the petitioner could obtain the NOC issued for construction of the building which was dated 15.2.2014 and issued under “Clause 1 of Section 53A (1) of the Assam Municipal Act, 1956, as amended in 2011” and, to his bewilderment, found that the NOC was issued on the same day of submitting application, ostensibly to by-pass and defeat the provisions of proposed Assam Notified Urban Areas (Other Than Guwahati) Building Rules, 2014 (for short, ‘the 2014 Rules’). I n the writ petition, details of changes which would have been required had the NOC been granted under the 2014 Rules are also delineated. I t is pleaded that the NOC was issued in gross violation of the Office Memorandum dated 21.11.2013 issued by the Deputy Secretary to the Government of Assam, Urban Areas Development Department on the subject of building permission. The
WP(C) 4022/ 2015
illegalities committed by the respondent No. 2 while issuing the NOC are highlighted in paragraph 11. I t is also pleaded that there being no provision for parking of vehicles, same will result in major parking problem in the locality. Besides, no NOC was obtained by the respondent No. 7 from State Fire Services which is a condition precedent for enabling a person to obtain NOC under Municipal laws. No environmental clearance is also obtained by the respondent No. 7 and, therefore, for the illegalities committed by the respondent No. 7, the building constructed by the respondent No. 7 based on an NOC issued in violation of law, is liable to be demolished. But the respondents had turned a blind eye to the illegal construction and thus have abdicated the statutory powers. I t is also stated that a proceeding, under Section 107 Cr.P.C., had also not yielded the desired result.
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The respondent No. 2 filed an affidavit stating that by the time the writ petitioner filed his complaint on 4.6.2015, the respondent No. 7 had already completed the construction of the basement and had started construction of the first floor based on the NOC dated 15.2.2014. The respondent No. 2 acknowledged that on measurement of the land inside the boundary wall of the respondent No. 7 on southern and eastern side, minimal deviation was found and, accordingly, the letter dated 16.6.2015 was issued to correct the deviation. I t is averred that southern side of the land of the respondent No. 7 is covered by land of Vineet Kumar Tibrewala, Bhagawati Devi Tibrewala and the petitioner. Vineet Kumar Tibrewala and Bhagawati Devi Tibrewala had submitted NOC to the Board in respect of the construction. I n the southern side of the land of respondent No. 7, petitioner’s land comprises of only 5% of the total length and if the measurement is taken from the edge of the boundary wall, which is 10’ thick, there would be no deviation. I n view of the order of this Court dated 07.12.2015, the land was again measured in presence of both the parties and when measured from the outside edge of the boundary wall of the respondent No. 7, deviation was found to be much lesser than given in the notice dated
16.6.2015. While taking measurement, a godown illegally constructed by the petitioner on the boundary wall of the respondent No. 7 was noticed. The Rules of 2014 was not brought into force and the NOC having been granted lawfully, could not be cancelled. I t is averred that the Office Memorandum dated 21.11.2013 had not been implemented as the extant Act and Rules have not been amended. The allegation of granting of NOC on the date of application is denied and in view of minimal deviation, it is averred that the building cannot be demolished.
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At this stage, it will be relevant to notice the order dated 7.12.2015 of this Court. Taking note of the fact that the petitioner and respondent No. 7 are litigating over family property and also of the possibility of negotiated settlement of the dispute, favourable response having emanated both from the petitioner and the respondent No. 7, this Court attempted to resolve the dispute through mediation. A trained Mediator, however, submitted a report dated 9.2.2016
WP(C) 4022/ 2015
remarking that mediation had failed. While passing the order dated 07.12.2015, the Court had also taken note of the affidavit of the...
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