Allowed

Jufiul HUDA v. the State of Assam and 3 Ors.

Gauhati HC7 Jan 2020WP(C)/2866/2013

Case brief

AI extract

What is this about?

This High Court held that the Dibrugarh Municipal Board could not adjudicate on issues identical to those already resolved by the Civil Court regarding the petitioner's existing construction. Consequently, the impugned notices were set aside and the writ petition was allowed.

What did the court decide?

Impugned notices dated 03.05.2013 and 17.05.2013 were set aside and quashed.

Jufiul HUDA Vs the State of Assam and 3 Ors. — Property and Title | Gauhati HC (2020)

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Page No.# 1/4

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GAHC010130082013

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 2866/2013

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JUFIUL HUDA

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S/O NURUL HUDA R/O SOUTH AMOLAPATTY P.S. AMOLAPATTY, P.O. MOHONAGHAT, DIST.DIBRUGARH,

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VERSUS

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1:THE STATE OF ASSAM AND 3 ORS

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REP. BY THE COMMISSIONER AND SECRETRY TO THE GOVT. OF ASSAM, DEPARTMENT OF MUNICIPAL ADMINISTRATION, DISPUR, GUWAHATI-6.

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2:DIBRUGARH MUNICIPAL BOARD REP. BY ITS CHAIRMAN P.O. DIBRUGARH DIST. DIBRUGARH ASSAM.

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3:THE CHAIRMAN DIBRUGARH DIST. DIBRUGARH ASSAM.

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4:MD. ASLAM TARIQ RAHMAN S/O LT. MUHIBUR RAHMAN R/O SOUTH AMOLAPATTY P.S. AMOLAPATTY P.O. MOHONAGHAT DIST. DIBRUGARH

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Advocate for the Petitioner : MS.S SULTANA

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Advocate for the Respondent : MR.S B SARMA

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Page No.# 2/4

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BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

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ORDER

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07.01.2020

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This matter was last listed on 03.01.2020 when the following order was passed:-

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“ Heard Shri T. J. Mahanta, learned Sr. Counsel for the petitioner. Also heard Shri D. K. Das, learned counsel appearing for the private respondent No. 4. Though the name of Shri A. Chamuah, learned counsel appearing on behalf of the contesting respondent Nos. 2 and 3 has been reflected in the cause list, the learned counsel is not present.

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Considering the subject matter in dispute and also the fact that the writ petition is pending since the year 2013, list this case for Admission hearing on 07.01.2020 . An endeavour would be made to dispose of the writ petition on the next date as the same had to be adjourned only due to absence of the learned counsel for the respondent Nos. 2 and 3.”

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2 . Heard Shri T. J. Mahanta, learned Senior Counsel for the petitioner. One of the principal respondent being respondent No. 4 represented by Shri D. K. Das, learned counsel is absent. However, Shri A. Chamuah, learned counsel for the respondent Nos. 2 and 3 alongwith Ms. M. D. Borah, learned State Counsel for the respondent No. 1 are present.

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The petitioner had put to challenge the action of the Dibrugarh Municipal Board in issuing notice apparently on a complaint lodged by the respondent No. 4 regarding the building of the petitioner situated at Amolapatty in Ward No. 7. Dibrugarh. It is the case of the petitioner that though the notice was issued apparently on a complaint by the respondent No. 4, copy of such complaint was not furnished to him. Nonetheless, vide reply dated 08.05.2013 the petitioner had informed the Board that there was no illegality whatsoever in the construction of the house which was made in the year 1984. It was also categorically stated that in the mean time the issue of alleged illegality in the construction was the subject matter of dispute in TS No. 7/1993 which was instituted by the present respondent No. 4 in the appropriate Court at Dibrugarh and was dismissed on 03.05.1999. Against that, the Title appeal was also dismissed on 17.08.2000. The respondent No. 4 had unsuccessfully filed RSA No. 192/2000 which was dismissed by this Court on 04.06.2013.

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Page No.# 3/4

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A bare perusal of the initial judgment dated 03.05.1999 passed by the learned Civil Judge, Junior Division No. 2 would make it clear that the dispute was regarding leaving the required space as per Municipal Act/Town and Country Development Act and with a prayer to bring down the construction made by the present petitioner. For ready reference, the relevant part of the aforesaid judgment is extracted herein below:-

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“ The plaintiff has instituted the suit for permanent injunction restraining the defendants from making any construction on the northern boundary of the plaintiff without leaving the require space as per Municipal Act/Town and country Development Act and pull down the illegal construction made by the defendants.”

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Shri Mahanta, the learned Sr. Counsel assisted by Shri T. Gogoi, learned counsel by drawing the attention of the Court in paragraph 7 of the writ petition submits that the issues of the complaint and those in the civil dispute between contesting parties were identical. He further submits that though the Municipal Board has filed its affidavit-in-opposition, that contention has not been categorically denied.

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On the other hand, Shri Chamuah, learned counsel for the Municipal Board submits that the Board not being a party defendant in the civil dispute, the Board is not fully aware of the issues therein. He however contends that for making any fresh constructions, due permission is necessary from the Board in accordance with law and the complaint pertains not only to renovation but to fresh constructions also.

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7 . Shri Mahanta, learned Sr. Counsel refutes the said allegation by contending that the construction was in the year 1984 even before the Dibrugarh Development Board has come into existence. He categorically submits that construction in accordance with law which existed at that point of time and that stand has been fortified by the learned Civil Court by dismissing the suit filed against the present petitioner by the respondent No. 4.

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After due consideration of the submission made by the learned counsel and on perusal of the materials on record more specifically the judgments rendered by the Civil Court

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Page No.# 4/4

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of competent jurisdiction which has been upheld not only by the Appellate Court but also by this Court in the Regular Second Appeal, this Court is of the opinion that there is no scope of any further adjudication by the Dibrugarh Municipal Board of the issues which are identical in nature.

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Accordingly, the impugned notices dated 03.05.2013 as well as 17.05.2013 are set aside and quashed. It is however made clear that this order is only pertaining to the issue in hand and if any fresh construction is initiated by the petitioner, necessary permission under the Act in force have to be taken from the competent authority.

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Writ petition is accordingly allowed.

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JUDGE

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Comparing Assistant

Jufiul HUDA v. the State of Assam and 3 Ors.

Case brief

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Jufiul HUDA v. the State of Assam and 3 Ors.

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