WP(C) No. 940 of 2011. Case: Anurag Agarwal Vs State of Assam & Ors.. Guwahati High Court
| Case Number | WP(C) No. 940 of 2011 |
| Counsel | For Appellant: Mr. B.C. Das, Mr. D.N. Bhattacharjee, Mr. S.K. Singh & Mr. U. Datta, Advs. and For Respondents: GA, Assam, Asstt. S.G.I., Mr. S. Bhattacharjee, Ms. M. Bhattacharjee, Ms. S. Nath, For Caveator & Mr. A. Ganguly, Adv. |
| Judges | Ujjal Bhuyan, J. |
| Issue | Constitution of India - Article 226 |
| Judgement Date | January 10, 2012 |
| Court | Guwahati High Court |
Judgment:
Ujjal Bhuyan, J.
1. By this application under article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the direction contained in the letter No. UDD(T)/284/2010/9 dtd. 29.12.2010 issued by the Under Secretary to the Government of Assam, Urban Development Department and addressed to the Chairman, Tezpur Development Authority, Tezpur (Annexure-5 to the writ petition) as well as the letter bearing No. TDA/BP/Mazgaon/2013/10/590 dtd. 05.01.2011 issued by the Chairman, Tezpur Development Authority and addressed to the petitioner (Annexure-4 to the writ petition). The petitioner is the owner and possessor of a plot of land measuring 2 bighas 3 kathas and 11 lechas covered by dag Nos. 967 and 3 of patta Nos. 14 and 433 of village- Mazgaon in the revenue district of Sonitpur (Assam). The said land is situated at Mission Chariali by the side of the National Highway (NH)37A.
2. The petitioner applied before the Tezpur Development Authority ("the Development Authority" hereafter) on 22.08.2008 seeking permission to construct a multistoried RCC building having 7 floors for a shopping mall and cinema complex on the aforesaid plot of land. By order dated 25.09.2008, the Development Authority approved the said application alongwith the map submitted and granted permission for construction. The petitioner also obtained such permission from the Mazgaon Gaon Panchayat.
3. According to the petitioner, after obtaining the construction permission, he contacted various persons to raise necessary finances to construct the said multi-storied building. Finally, a company known as Satyam Krishna Infra-Project Private Limited, of which the petitioner is also a director, decided to construct the said building. After arranging the necessary finances, the construction work was started and within a span of 15 months, the outer construction of the building was completed.
4. Thereafter, the petitioner received a letter bearing No. TDA/BP/Mazgaon/2013/10/590 dtd. 05.01.2011 issued by the Chairman of the Development Authority. By the said letter, it was stated that the No Objection Certificate (NOC) for construction of the commercial complex (G + 7) issued to him on 25.09.2008 has been stayed until further order. The petitioner was asked to stop the construction of the said building immediately. Be it stated that copies of the aforesaid letter dated 05.01.2011 were marked to the Under Secretary to the Government of Assam, Urban Development Department and also to the Station Commander, Tezpur Military Station. Alongwith the said letter, a copy of a letter received from the said Under Secretary was also enclosed. The enclosed letter is one bearing No. UDD(T)284/2010/9 dtd. 29.12.2010 issued by the aforesaid Under Secretary and addressed to the Chairman of the Development Authority. By the said letter, it was stated that the permission granted on 25.09.2008 for construction of a high rise building by the petitioner is within the periphery of 500 meters of the Military Station at Tezpur. The Chairman of the Development Authority was informed that the said permission has been stayed until further order. A copy of the said letter was marked to the Station Commander, Tezpur Military Station.
5. The petitioner, who was directed to stop the construction of the building by the aforesaid letters, sought for certain information from the Development Authority through his counsel under the Right to Information Act, 2005 vide the letter dated 10.01.2011. Since in the Government letter dated 29.12.2010 there was a reference to a letter of the Development Authority bearing No. TDA/BP/Mazgaon/2013/494 dated 09.09.2010, a copy of the said letter was also sought for alongwith two other heads of information. The following were the information sought for:
(i) Copy of the office letter No. TDA/BP/Mazgaon/2013/494 dated 9.9.2010.
(ii) Any other correspondence between the army authorities and the Development Authority.
(iii) Copies of all office notes pertaining to the above matter.
6. The Development Authority furnished to the petitioner a copy of the minutes of a civil military liaison meeting held on 17.05.2010 alongwith a copy of the forwarding letter dated 24.06.2010 issued by the Deputy Secretary to the Government of Assam, Revenue and Disaster Management (LR) Department addressed to the Deputy Commissioners of Kamrup (M) and Sonitpur districts of the State by which copies of the aforesaid minutes were forwarded for taking immediate necessary steps as per item No. (a) of the minutes.
7. From the minutes, it transpires that as many as 23 issues were discussed in that meeting and thereafter decisions were taken. As per item No. (a), the army authorities had raised the issue of construction of high rise buildings near the military stations at Narengi and Tezpur claiming to be in violation of the Works of Defence Act, 1903 and Classification of Defence Installations and Establishment and Instructions with regard thereto, Gazette of India dated 03.03.2007 and Gazette of India Extra Ordinary dated 30.06.2008. Among other things, it was insisted by the army authorities that no high rise building (more than 48 feet) should be permitted to be constructed within 500 meters from the perimeter of a military station without obtaining a NOC from the local military authorities. The decision that was taken on that issue is as follows:-
Decision
After discussion of the matter thoroughly, the Principal Secretary directed the GMC and GMDA authorities to make a note and issue necessary amendments in the by laws. Fresh applications seeking permission to construct high rise new houses be put on hold. All other township municipal corporations be sensitized accordingly. Necessary notification under Defence Act, 1903 to be done within three months by DC Kamrup (Metro).
The illegal settlement in the restricted area be removed as per procedure by the District authorities.
8. The petitioner through his counsel had also sought for the following information from the army authorities under the Right to Information Act, 2005 vide the letter dated 10.01.2011:-
(i) Copies of letters and correspondences between the army and Government, authorities concerning the construction of multistoried building at Mission Chariali by the petitioner.
(ii) Grounds of objection for such construction.
9. On receipt of such request, the army authorities took a somewhat unusual step and vide the letter dated 24.01.2011 addressed to the petitioner's counsel, requested the counsel to submit document regarding proof of his Indian citizenship and the vakalatnama under which the counsel was authorized by the petitioner. The counsel furnished the above documents on 04.02.2011 and requested the army authority to provide the information sought for.
10. The petitioner also submitted a representation dated 17.01.2011 to the Under Secretary to the Government of Assam, Urban Development Department stating that almost 80 percent of the construction works had been completed when the stop construction order was received. The petitioner stated that no notice was given to him prior to issuance of such order. The petitioner further stated that the army authorities never contacted him nor was he informed earlier of any objection raised by the army authorities. Stating that substantial investment has been made, the petitioner requested the said authority to withdraw the stay order as the project is of considerable tourist interest and will generate substantial employment opportunity and revenue. Similar prayer was also made before the Chairman of the Development Authority wherein the petitioner highlighted that stoppage of construction at this stage would result in a huge financial loss to him every day.
11. While no decision was taken on the said representation of the petitioner, on the other hand, the petitioner was again served with a letter dated 03.02.2011 issued by the Chairman of the Development Authority directing the petitioner to stop the construction immediately. The petitioner waited for a response from the Govt. but no such response was forthcoming. The army authority also did not furnish to the petitioner the information that was sought for.
12. It was at this stage that the petitioner came before this Court seeking the relief as indicated above.
13. This Court on 25.02.2011 while issuing notice, directed maintenance of status quo as regards the works in the building.
14. The army authority i.e., the Station Commander, Tezpur Military Station, respondent No. 4 in the writ petition, had entered appearance by filing a caveat. Subsequently, a counter affidavit was filled by the said respondent No. 4. In the counter affidavit, the respondent No. 4 has stated that concerned with the construction of high rise buildings within the periphery of 500 meters of the military stations at Narangi and Tezpur, the army authorities had taken up the matter with the Govt. of Assam in the civil military liaison meeting held on 17.05.2010. Pursuant thereto, the Govt. of Assam decided to make necessary amendments in the municipal laws to ensure that no high rise buildings (more than 48 feet) would be permitted to be constructed within 500 meters from the perimeter of the military station without obtaining NOC from the local military authorities. It was further decided by the Govt. of Assam to put on hold fresh applications seeking permission to construct highrise buildings within the above specified areas. In terms of the decision, the Deputy Secretary to the Govt. of Assam, Revenue and Disaster Management Department issued necessary instructions to the Deputy Commissioner, Sonitpur vide letter dated 24.06.2010, who in turn wrote to the Chairman of the Development Authority. According to the said respondent, having noticed that the petitioner had been constructing a highrise building of about 90ft. height near the Tezpur Military Station, he...
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