In a writ petition, the Gauhati High Court directed the GMDA to dispose of a pending representation regarding occupancy certificate rejection and ordered status quo maintenance.
Directed the GMDA to dispose of the pending representation within three months and ordered status quo maintenance.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010066272018
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 2079/2018
1:M/S HOTEL BARAK RESIDENCY AND ANR.
HATIGAON ROAD, NEAR RAJDHANI MASJID, REPRESENTED BY ITS OWNER NAMELY JAMAL UDDIN AHMED, P.O. AND P.S. DISPUR, DISTRICTKAMRUP(M), ASSAM, PIN-781006
2: JAMAL UDDIN AHMED S/O. HAJI NAZIB ALI R/O. HATIGAON ROAD NEAR RAJDHANI MASJID P.O. AND P.S. DISPUR GUWAHATI-6 DISTRICT- KAMRUP (M) ASSAM PIN-78100
VERSUS
1:THE STATE OF ASSAM AND 4 ORS.
TO BE BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, MUNICIPAL ADMINISTRATION DEPARTMENT, DISPUR, GUWAHATI-6.
2:THE CHIEF EXECUTIVE OFFICER GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY BANGHAGARH GUWAHATI-5.
3:THE GUWAHATI MUNICIPAL CORPORATION REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER P.O. PANBAZAR DISTRICT- KAMRUP (M) ASSAM.
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4:THE COMMISSIONER GUWAHATI MUNICIPAL CORPORATION DISPUR ZONE GUWAHATI-6.
5:THE TOWN PLANNER GUWAHATI METROPOLITIAN DEVELOPMENT AUTHORITY BHANGAGARH GUWAHATI-5
Advocate for the Petitioner : MR. D DAS, SR. Advocate for the Respondent : GA, ASSAM
:: BEFORE ::
HON’BLE MR. JUSTICE PRASANTA KUMAR DEKA
-O R D E R-
06.04.2018
Heard Mr. D Das, learned Senior Counsel assisted by Mr. JI Barbhuiya, learned counsel for the petitioners. Also heard Ms. M Hazarika, learned Senior Counsel and Standing Counsel of Guwahati Metropolitan Development Authority (GMDA) assisted by Ms. S Khound, Mr. S Bora, learned Standing Counsel, Guwahati Municipal Corporation (GMC) appearing on behalf of the respondents No. 3 and 4 and Mr. SR Baruah, learned counsel for the respondent No. 1.
The petitioner No. 2 is the owner with respect to the 1K 12L of land covered by Dag No. 553 (old)/ 1167 (new) of KP Patta No. 117 (old)/ 135 (new) of village Jatia under Mouza Beltola in the district of Kamrup (M). Vide No Objection Certificate (NOC) issued under Section 25 of the GMDA Act, 1985, the GMDA authority issued the requisite building permission over the said plot of land in the name of the petitioner No. 2. The said NOC dates back to 04.01.2011. The petitioner No. 2 through his two sons carried out the construction as per the NOC issued by the GMDA and started a hotel under the name and style M/S Barak Residency. After completion of the construction, two applications on 03.01.2015 were submitted before the Commissioner, GMC for issuance of NOC in order to carry out the hotel business and
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another before the GMDA for issuance of occupancy certificate in terms of the said NOC dated 04.01.2011 for running the hotel business in the aforesaid building. In response to the said two applications the Commissioner, GMC issued a certificate dated 29.07.2015 thereby granting NOC in allowing to run the hotel under the name and style M/S Barak Residency at Hatigaon Road under Ward No. 59/26 bearing House No. 3851 standing in the names of the two sons of the petitioner No. 2. On the other hand, the GMDA vide letter dated 25.06.2015 rejected the prayer for issuance of occupancy certificate of the petitioner No. 2. The ground for rejection as apparent from the said letter dated 25.06.2015 due to non-compoundable deviations in front and rear setbacks along with other parameters. Being aggrieved on such rejection of the said application for issuance of occupancy certificate, the petitioner No. 2 vide his representation dated 12.08.2015 sought for the intervention of the GMDA appellate authority. But till date, the said representation is yet to be disposed of by the GMDA authority. Mr. Das, learned Senior Counsel, submits that the petitioner through his two sons is running the hotel business after obtaining the requisite permissions from the different authorities so required in order to run such type of business. It is also not disputed by Mr. Das that the building was constructed on the basis of the NOC issued in the year 2011 and there were changes within the locality with respect to the width of the roads and other infrastructures carried out by the GMDA/ GMC authorities. Under such circumstances, if there be any deviation, the same can be compounded and the requisite occupancy certificate ought to have been issued by the GMDA. Mr. Das fairly submits that till date, the GMDA authority nor the GMC has caused any hurdle/ obstruction in carrying out the business.
Ms. Hazarika, learned Senior Counsel, submits that as the deviations were pointed out by the GMDA authority, all such deviations may not be compoundable and under such circumstances, necessary action may be directed by the GMDA authority to be carried out by the petitioner and thereafter there is no question of not issuing the occupancy certificate on payment of penalty.
Mr. Bora submits that the GMC except issuing the trade license which was issued way back in the year 2015 showing its validity for a period of 1 year, it has no role to play inasmuch as everything was done by the GMDA.
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Keeping in view the submissions of the learned counsels and the representation of the petitioner No. 2, having not been disposed of by the GMDA, in my opinion, it would be proper to direct the GMDA to dispose of the said representation dated 12.08.2015 by the petitioner No. 2 as per the rules and regulations keeping in view the compoundability/ non-compoundability of the deviations as prescribed therein the rules. The petitioner is also given liberty to file a fresh representation keeping in view the various changes in the law both with regard to the building bye-laws and the other requisites. The GMDA accordingly will accept such additional representation by the petitioner No. 2 and shall make an endeavour to dispose it of within a period of 3 (three) months from the date of the receipt of the representation along with the copy of this order. Till the disposal of the said application, let status quo be maintained by the parties to this writ petition in respect of the building so constructed under the NOC dated 04.01.2011 issued by the GMDA.
This writ petition is accordingly disposed of.
JUDGE
Comparing Assistant
M/S Hotel Barak Residency and anr.
The State of Assam
Prasanta Kumar Deka
As recorded by the court registry
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