Disposed

Mamta Devi Pugalia and 8 Ors. v. the Guwahati Municipal Corporation and 12 Ors.

Gauhati HC8 Sept 2022WP(C)/7625/2018

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed the petitioners' claim that a restaurant lease violated building regulations, as the conversion permission was not challenged. However, fearing misuse of common areas, the court directed the GMC Commissioner to inspect the building and ensure common spaces remain accessible to all occupants.

What did the court decide?

Directed the Commissioner of GMC to inspect common areas to ensure the restaurant does not exclusively use them to the detriment of other occupants.

Mamta Devi Pugalia and 8 Ors. Vs the Guwahati… — Writ and Judicial Review | Gauhati HC (2022)

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GAHC010244942018

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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)/7625/2018

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MAMTA DEVI PUGALIA AND 8 ORS. W/O SURENDRA KUMAR PUGALIA,

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R/O FLAT NO. 2-A, 2ND FLOOR, MANAV TOWER, DR. B.K. KAKOTI ROAD, OPPOSITE GURU NANAK SCHOOL, SARABBHATI, GUWAHATI, P.O. REHABARI, P.S. PALTAN BAZAR, DIST. KAMRUP (M), ASSAM. PIN - 781008.

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2: SRI PRADIP KUMAR MALOO S/O LATE UTTAM CHAND MALOO

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R/O FLAT NO. 2-B 2ND FLOOR MANAV TOWER DR. B.K. KAKOTI ROAD

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OPPOSITE GURU NANAK SCHOOL SARABBHATI GUWAHATI P.O. REHABARI P.S. PALTAN BAZAR

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DIST. KAMRUP (M) ASSAM. PIN - 781008.

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3: SMT. MANTA DEVI MALOO W/O PRADIP KUMAR MALOO

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R/O FLAT NO. 2-B 2ND FLOOR MANAV TOWER DR. B.K. KAKOTI ROAD

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Page No.# 2/12

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OPPOSITE GURU NANAK SCHOOL SARABBHATI GUWAHATI P.O. REHABARI P.S. PALTAN BAZAR DIST. KAMRUP (M) ASSAM. PIN - 781008.

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4: SRI MOHIT KHEMANI S/O SRI SUSHIL KHEMANI R/O FLAT NO. 3-A 3RD FLOOR MANAV TOWER DR. B.K. KAKOTI ROAD

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OPPOSITE GURU NANAK SCHOOL SARABBHATI GUWAHATI P.O. REHABARI P.S. PALTAN BAZAR DIST. KAMRUP (M) ASSAM. PIN - 781008.

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5: SMT. NIKITA KHEMANI W/O SRI MOHIT KHEMANI R/O FLAT NO. 3-A 3RD FLOOR MANAV TOWER DR. B.K. KAKOTI ROAD OPPOSITE GURU NANAK SCHOOL SARABBHATI GUWAHATI P.O. REHABARI P.S. PALTAN BAZAR DIST. KAMRUP (M) ASSAM. PIN - 781008.

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6: SRI CHANCHAL JAIN S/O ASHOK KUMAR JAIN R/O FLAT NO. 4-A

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4TH FLOOR MANAV TOWER DR. B.K. KAKOTI ROAD

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OPPOSITE GURU NANAK SCHOOL SARABBHATI GUWAHATI P.O. REHABARI P.S. PALTAN BAZAR DIST. KAMRUP (M) ASSAM. PIN - 781008.

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7: SRI RUPAL JAIN S/O ASHOK KUMAR JAIN R/O FLAT NO. 4-B 4TH FLOOR MANAV TOWER DR. B.K. KAKOTI ROAD OPPOSITE GURU NANAK SCHOOL SARABBHATI GUWAHATI P.O. REHABARI P.S. PALTAN BAZAR DIST. KAMRUP (M) ASSAM. PIN - 781008. 8: SRI PAWAN KUMAR BAJAJ R/O FLAT NO. 1-A 1ST FLOOR MANAV TOWER DR. B.K. KAKOTI ROAD OPPOSITE GURU NANAK SCHOOL SARABBHATI GUWAHATI P.O. REHABARI P.S. PALTAN BAZAR DIST. KAMRUP (M) ASSAM. PIN - 781008. 9: SMT. SUMAN KUMAR BAJAJ

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W/O PAWAN KUMAR BAJAJ R/O FLAT NO. 1-B 1ST FLOOR MANAV TOWER DR. B.K. KAKOTI ROAD

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OPPOSITE GURU NANAK SCHOOL SARABBHATI GUWAHATI P.O. REHABARI P.S. PALTAN BAZAR DIST. KAMRUP (M) ASSAM. PIN - 781008

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VERSUS

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THE GUWAHATI MUNICIPAL CORPORATION AND 12 ORS. REP. BY ITS COMMISSIONER, M.G. ROAD, PANBAZAR, GUWAHATI, P.O.PANBAZAR, P.S. PANBAZAR, DIST. KAMRUP (M), ASSAM, PIN - 781001.

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2:THE COMMISSIONER

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GUWAHATI MUNICIPAL CORPORATION M.G. ROAD PANBAZAR GUWAHATI P.O. PANBAZAR P.S. PANBAZAR DIST. KAMRUP (M) ASSAM PIN - 781001. 3:GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY

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REP. BY ITS CHIEF EXECUTIVE OFFICER 3RD FLOOR STATFED BUILDING GMC HOSPITAL ROAD BHANGAGARH GUWAHATI P.S. BHANGAGARH

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DIST. KAMRUP (M) ASSAM PIN - 781005. 4:THE CHIEF EXECUTIVE OFFICER

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GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY 3RD FLOOR STATFED BUILIDING GMC HOSPITAL ROAD BHANGAGARH GUWAHATI P.S. BHANGAGARH DIST. KAMRUP (M) ASSAM PIN - 781005.

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5:THE FIRE AND EMERGENCY SERVICES

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REP. ITS DIRECTOR PANBAZAR GUWAHATI DIST. KAMRUP (M) ASSAM P.O. PANBAZAR P.S. PANBAZAR PIN - 781001.

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6:THE DIRECTOR

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FIRE AND EMERGENCY SERVICES

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PANBAZAR GUWAHATI DIST. KAMRUP (M) ASSAM P.O. PANBAZAR P.S. PANBAZAR PIN - 781001. 7:THE POLLUTION CONTROL BOARD ASSAM REP. BY ITS MEMBER SECRETARY MILANPUR WEST JYOTINAGAR BAMUNIMAIDAN GUWAHATI P.O. BAMUNIMAIDAN P.S. CHANDMARI ASSAM

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DIST. KAMRUP (M) PIN - 781004.

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8:THE MEMBER SECRETARY

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POLLUTION CONTROL BOARD ASSAM

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MILANPUR WEST JYOTINAGAR BAMUNIMAIDAN GUWAHATI P.O. BAMUNIMAIDAN P.S. CHANDMARI ASSAM DIST. KAMRUP (M) PIN - 781004.

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9:THE FLOOR SAFETY AND STANDARD AUTHORITY OF INDIA

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MILAN PATH H.NO. JM6 PANJABARI ROAD JURIPAR GUWAHATI KAMRUP (M) ASSAM P.O. PANJABARI P.S. PANJABARI PIN - 781022. 10:THE REGIONAL DIRECTOR (NORTH EASTERN REGION) INDIA TOURISM AMARAWATI PATH CHRISTIAN BASTI G.S. ROAD GUWAHATI KAMRUP (M) ASSAM PIN - 781005. 11:HOTEL RASA (FLAVOUR OF INDIA) REP. BY ONE OF ITS CO-OWNER SRI ROHIT PODDAR ADDRESS- MANAV TOWER GROUND FLOOR

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DR. B.K. KAKOTI ROAD

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OPPOSITE GURU NANAK SCHOOL

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SARABBHATI GUWAHATI P.O. REHABARI P.S. PANBAZAR DIST. KAMRUP (M) ASSAM PIN - 781008. 12:SRI SUSHIL KHANDELIA S/O LATE GANGA PRASAD KHANDELI ADDRESS- MANAV TOWER GROUND FLOOR DR. B.K. KAKOTI ROAD OPPOSITE GURU NANAK SCHOOL SARABBHATI GUWAHATI P.O. REHABARI P.S. PANBAZAR DIST. KAMRUP (M) ASSAM PIN - 781008. 13:SMTI. MAMTA DEVI KHANDELIA W/O SHRI SUSHIL KUMAR KHANDELIA ADDRESS- MANAV TOWER GROUND FLOOR SARABHATTI OPP. GURU NANAK SCHOOL P.O. REHABARI P.S. PANBAZAR DIST. KAMRUP (M) ASSAM PIN - 781008

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Advocate for the Petitioner : MR. S CHAMARIA

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Advocate for the Respondent : MR H SARMA (SC, GMC, R-1 & 2)

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BEFORE

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HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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ORDER

08.09.2022

Heard Mr. S Chamaria, learned counsel for the petitioners. Also heard Mr. S Bora, learned counsel for the respondents No.1, 2, 3 and 4 being the authorities under the Guwahati Municipal Corporation (for short, the GMC) and Guwahati Metro Development Authority (for short, the GMDA), Ms. M Barman, learned Junior Government Advocate for the respondents No.5 and 6 being the Fire and Emergency Services, Government of Assam, Mr. SK Kejriwal, learned counsel for the respondent No.11 being the restaurant, in question, ‘Hotel Rasa’ and Ms. S Kejriwal, learned counsel for the respondents No.12 and 13 namely, Sri Sushil Khandelia and Smti Mamta Devi Khandelia respectively.

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The petitioners claim to be flat owners of the building named ‘Manav Tower’ located at Dr. BK Kakoti Road, opposite Guru Nanak School, Sarabbhati, Guwahati. Ms. S Kejriwal, learned counsel appearing for the respondents No.12 and 13 points out that some of the petitioners are commercial establishment holders in the building and are not the flat owners. Be that as it may, the petitioners are aggrieved to the extent that respondents No.12 and 13 who are the owners of certain commercial space within the building had leased out the premises to the respondent No.11 for the purpose of operating a restaurant. According to the petitioners, the space concerned in the building was originally permitted for the purpose of operating office-cum-shop and, therefore, in contravention to the permission granted, the respondents No.12 and 13 could not have leased out the space to the respondent No.11 for operating a restaurant, inasmuch as, it would amount to a change in the use of the premises. Another grievance of the petitioners is that while operating the

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restaurant for the ancillary purposes, certain common space available within the building are also being used by the respondent No.11 in furtherance of their activities of operating a restaurant.

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As regards the conversion of the use of the space, Mr. S Chamaria, learned counsel for the petitioners refers to the provisions of the explanation to Section 2 of the Guwahati Building Construction (Regulation) Act 2010 and submits that a restaurant can be operated only in such buildings which are classified as assembly buildings. According to the petitioners, in the instant case, the building concerned is classified as residential-cum-common building and therefore, a change of use of the premises to a restaurant could not have been done.

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Mr. S Bora, learned counsel for the authorities under the GMC and GMDA raises a counter contention that as per Regulation 18(b) of the Guwahati Building Construction (Regulation) Byelaws, 2014, an application can be made for a change of use of a building or part of a building and the authorities upon such application being made are empowered to decide as to whether any approval of the proposed change can be allowed. It is accordingly submitted that in exercise of the power under Regulation 18(b), on an application made by the respondents No.12 and 13, the authorities in the GMDA deemed it appropriate that it was a fit case considering the structure of the building to allow the conversion of use. The authorities in the GMDA also took note of the existing master plan as to whether the provisions of the master plan do authorize the GMDA to allow a restaurant to be operated in a given area.

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Considering both the aspects, by the order dated 03.12.2018 of the Chief Executive Officer, GMDA, the respondents No.12 and 13 were granted the permission to convert the use of the space concerned for operating a restaurant.

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This writ petition is instituted on the grievance that upon the restaurant being operated in a space within the building different kinds of inconveniences are being caused to the flat owners and others who occupy space in the building. Accordingly, this writ petition is instituted with a prayer for a direction to the official respondents to inspect the respondent No.11, restaurant, as to whether it conforms to the required statutory laws, rules and other regulations applicable for setting up of a restaurant. The second prayer is for not allowing the respondents No.12 and 13 to operate the business of a restaurant in the space concerned and further for a direction to the respondents in the GMC, GMDA and Pollution Control Board to take legal measures to protect the interest of the writ petitioners.

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As regards the first prayer for an inspection as to whether the conversion and operation of the respondent No.11 restaurant in the building ‘Manav Tower’ was as per the statutory laws, rules and regulations applicable, the submission of Mr. S Bora, learned counsel for the GMC and GMDA is that the authorities have taken note of all the relevant laws in force, while allowing the conversion which takes care of the prayer for a direction to inspect the premises.

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We have taken note that the order dated 30.11.2018 of the Chief

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Executive Officer of the GMDA allowing such conversion of the use of the premises is not assailed by the writ petitioners. As regards the other contentions raised that for the ancillary purpose of operating a restaurant, the respondent No.11 is also utilizing the common space of the building, we accept such contention that if the common space had been used by the respondent No.11 to the detriment of the other residents of the building, definitely the legal rights of the other occupants of the building would be affected.

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To mitigate the situation, we direct the Commissioner of GMC to cause an enquiry through an appropriate officer of the GMC and make an inspection to firstly find out what are the common areas within the building ‘Manav Tower’ and whether any such common area had been used by the respondent No.11 for the purpose of operating the restaurant to the detriment of the other occupants of the building. If upon such enquiry and inspection, any such common area is located where the respondent No.11 is exclusively making its use to the exclusion of the other occupants of the building, the Commissioner of GMC to pass necessary order and take necessary steps to ensure that the common area is left open for the use of all the occupants of the building and not make it confined for the use of the respondent No.11 restaurant.

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Writ petition stands disposed of in the above terms.

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JUDGE

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Comparing Assistant

Mamta Devi Pugalia and 8 Ors. v. the Guwahati Municipal Corporation and 12 Ors.

Case brief

What is this about?

What did the court decide?

Mamta Devi Pugalia and 8 Ors. v. the Guwahati Municipal Corporation and 12 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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