Allowed

Navarun Das and Anr. v. the State of Assam and 5 Ors.

Gauhati HC12 Sept 2022WP(C)/805/2022

Case brief

AI extract

What is this about?

The Court allowed writ petitions challenging a GMDA order continuing a stop construction directive. It held that since the dispute involved ownership and right of passage, which are exclusively for civil courts, the GMDA lacked jurisdiction to maintain the stop order until adjudication by a competent forum.

What did the court decide?

The part of the order dated 21.01.2022 continuing the stop construction order dated 30.10.2021 was set aside.

Navarun Das and Anr. Vs the State of Assam and 5 Ors. — Land Acquisition | Gauhati HC (2022)

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GAHC010190382021

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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)/6208/2021

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NAVARUN DAS AND ANR

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S/O. BANI PRAKASH DAS, R/O. H.NO.24, RUPNAGAR, P.O. INDRAPUR, DIST. KAMRUP (M), ASSAM, PIN-781032.

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2: SMT. JYOTI DAS D/O. BANI PRAKASH DAS R/O. H.NO.24 RUPNAGAR P.O. INDRAPUR DIST. KAMRUP (M) ASSAM PIN-781032

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VERSUS

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THE STATE OF ASSAM AND 5 ORS

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REP. BY ITS COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, THE DEPTT. OF GUWAHATI DEVELOPMENT, ASSAM SACHIVALAY, DISPUR, GUWAHATI-781006.

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2:THE GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY (GMDA) REP. BY ITS CHAIRMAN STATFED BUILDING GMCH ROAD BHANGAGARH GUWAHATI-781005.

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3:THE GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY (GMDA) REP. BY ITS CHIEF EXECUTIVE OFFICER STATFED BUILDING GMCH ROAD BHANGATGARH GUWAHATI-781005.

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4:THE GUWAHATI MUNICIPAL CORPORATION (GMC)

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REP. BY ITS COMMISSIONER PANBAZAR GUWAHATI-781001. 5:THE DEPUTY COMMISSIONER KAMRUP (M) GUWAHATI-781001. 6:SMT. SMITA BARMAN W/O. SRI MANURANJAN TALUKDAR RUPNAGAR P.O. INDRAPUR DIST. KAMRUP (M) GUWAHATI-781032

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Linked Case : WP(C)/805/2022

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NAVARUN DAS AND ANR S/O- BANI PRAKASH DAS R/O- H NO. 24 RUPNAGAR P.O- INDRAPUR DIST- KAMRUP METRO ASSAM PIN- 781032 2: SMTI JYOTI DAS D/O BANI PRAKASH DAS R/O- H NO. 24 RUPNAGAR P.O- INDRAPUR DIST- KAMRUP METRO ASSAM GHY- 32 VERSUS

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THE STATE OF ASSAM AND 5 ORS

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM THE DEPTT OF GUWAHATI DEVELOPMENT ASSAM SACHIVALAYA DISPUR GHY- 06

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2:THE GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY (GMDA) REP. BY ITS CHAIRMAN STATFED BUILDING GMCH ROAD BHANGAGARH GHY- 05 3:THE GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY (GMDA) REP. BY ITS CEO STATFED BUILDING GMCH ROAD BHANGAGARH GHY- 01 4:GUWAHATI MUNICIPAL CORPORATION LTD REP. BY BY ITS COMMISSIONER PANBAZAR GUWAHATI- 781001 5:THE DEPUTY COMMISSIONER KAMRUP METRO GHY- 01 6:SMT SMITA BARMAN W/O- SRI MANURANJAN TALUKDAR RUPNAGAR P.O- INDRAPUR DIST- KAMRUP METRO ASSAM GHY- 781032 ------------

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B E F O R E

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Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI

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JUDGMENT & ORDER

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Advocates for the petitioners: Shri B.K. Das, Advocate

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Advocates for respondents : Shri S. Bora, SC, GMC, GDD & GMDA,

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Shri N. Alam, Advocate.

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Date(s) of hearing : 12.09.2022

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Date of judgment : 12.09.2022

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1. Heard Shri B.K. Das, learned counsel for the petitioners. Also heard Shri S. Bora, learned Standing Counsel for the GMC, GDD & GMDA whereas Shri N. Alam, learned counsel has appeared for the respondent no. 6 in both the cases.

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2. Both the writ petitions arising out of the same cause of action, the same are taken up together for final disposal.

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3. The issue started from a complaint lodged by the respondent no. 6 before the GMDA against the petitioners whereby the primary issue was blocking the ingress and egress of the road which they have been using. Allegations of violation of the building plan have also been made in the constructions made by the petitioners.

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4. On such complaint, a Show Cause Notice was issued on 30.10.2021 to the petitioners to give them an opportunity to place their case on the aforesaid complaint. On 03.11.2021, the reply was submitted by the petitioners explaining that there was no violation of any building plan or permission and all the constructions were done in accordance with law. In the first writ petition, the initiation of the proceeding was the subject matter of challenge and during the pendency of the said writ petition, the GMDA had passed the final order on 21.01.2022 on the proceeding initiated vide a Show Cause Notice dated 30.10.2021. By the said order, the GMDA had come to a finding that there was no violation of the building plan or permission per se. However, the authority had noticed that there was an issue with regard to the road used by the respondent no. 6 which was apparently affected by the construction. The GMDA ultimately had directed that though the issue involved was not a matter of adjudication of the GMDA, the parties were given the liberty to move the appropriate

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legal forum for redressal of the issue of the access road and till such resolution is there, the order of stop construction issued earlier on 30.10.2021 shall continue.

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5. It is the condition attached to the impugned order dated 21.01.2022 which is the ultimate matter of challenge and accordingly the second writ petition has been filed.

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6. Shri Das, the learned counsel for the petitioners submits that without going to the entire facts of the case, the first writ petition was filed against the initiation of the proceedings and the order of stop construction dated 30.10.2021. However, the proceeding had culminated in the order dated 21.01.2022 passed by the CEO, GMDA wherein the GMDA had come to a finding that there is no apparent violation of the building plan or permission in the construction made by the petitioners. The learned counsel submits that once such conclusion has been arrived at, the GMDA did not have any further authority or jurisdiction to continue the stop construction order more so when the GMDA itself has admitted that such matters which are within the domain of an appropriate legal forum. Shri Das, the learned counsel has submitted that though the order is dated 21.01.2022, till date he is not aware of any civil suit being filed by the respondent no. 6 wherein there has to be an order of injunction for such legal restrain.

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7. In support of his submission, the learned counsel for the petitioners has placed reliance upon the following case laws:-

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1. Khanindra Hazarika vs. Rekha Saikia and Ors. (2008 4 GLR 122).

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2. Nurul Haque vs. State of Assam and Ors. (2014 4 GLR 781).

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8. In the case of Khanindra Hazarika (supra), this Court has held that matters

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connected with confirmation of right title and interest by way of adverse possession are matters which are to be decided only by a competent Civil Court and not by a Revenue Court.

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9. In the case of Nurul Hoque (supra), an Hon’ble Division Bench of this Court has held that dispute relating to ownership are matters to be decided by the Civil Court and not by any Revenue court or authority which does not have such jurisdiction.

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10. For ready reference, paragraph 9 of the judgment of the Hon’ble Division Bench passed in the case of Nurul Hoque (supra) is extracted herein below:-

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“9. The dispute relating to the ownership of the land arising between the parties has to be decided by the civil court and depending upon the decision of the civil court, the revenue authorities have to pass order in conformity with the judgment of the civil court in relation to the land in question. In other words, revenue court/ authority does not have the jurisdiction to decide the ownership rights of the parties over any immovable property and, hence, either revenue authorities have to await the decision of the civil court on the issue of ownership rights, if the dispute is subjudice in the civil court or pass the order directing the parties to approach the civil court and get their rights decided in relation to the land in question provided there is some dispute between the two rival parties over the ownership of immovable property to which revenue laws are applicable.”

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11. On the other hand, Shri Bora, the learned Standing Counsel of the authorities submits that though per se there is no violation of the building permission or plan, in the plan submitted by the petitioners through the RTP, the road was not properly described as a result of which, the obstructions alleged to have been caused by the respondent no. 6 as complainant could not be a matter to be taken up for consideration. The learned Standing Counsel defends the order that since the issue

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has to be finally decided by the Civil Court, the stop construction orders is liable to be retained till such adjudication. The learned Standing Counsel however fairly submits that such decision can be rendered only by a Civil Court of competent jurisdiction.

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12. Shri Alam, the learned counsel for the respondent no. 6 however vehemently opposes the prayer made in the writ petitions. He submits that while examining the complaint and consequently the building permission granted, the issue of rights of ingress and egress to the persons who are in use of a part of the land are relevant issues which have been overlooked in the impugned order. He further submits that the land of the respondent no. 6 is contiguous to the land of the petitioners and it is only through the land of the petitioners by which the ingress and egress was done and the respondent no. 6 is also ready and willing to purchase that part of the land which is used as a road.

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13. By drawing the attention of the drawings submitted by the petitioners before the authorities, Shri Alam, the learned counsel for the respondent no. 6 submits that the road was not even shown which was being used by the respondent no. 6 and therefore, the order passed by the authorities may not be interfered with.

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14. The rival submissions made by the learned counsel for the parties have been duly considered.

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15. The issue which arises for determination in this two writ petitions is the jurisdiction and authority of the GMDA for continuing the direction of stop construction in the impugned order dated 21.01.2022 even after coming to a finding that there is no apparent violation of the building permission and plan and also the fact that the issue which has arisen cannot be ascertained by the authority. The statute holding the field confers jurisdiction upon the GMDA to adjudicate matters which involves violation

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of building plan / permission and any other provision of the statute. However, such statute does not confer any jurisdiction to the GMDA to decide any issue of rights, title, ownership etc. In fact in the impugned order dated 21.01.2022 there is a candid admission that the claims and counter claims regarding the passage way cannot be ascertained by the authorities.

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16. For ready reference, the aforesaid observation made in the order dated 21.01.2022 is extracted herein below:

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”Whereas such claims and counter claims regarding the passage way cannot be ascertained by this Authority and has to be dealt in appropriate legal manner before the appropriate judicial forum and the parties are at liberty to do so.”

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17. Having said that, whether the said authority would have any jurisdiction to continue with the stop construction order dated 30.10.2021, is the issue which requires an answer. In the considered opinion of this Court, the GMDA not being vested with any such authority to decide the matter which is a subject matter of this case namely the claims and counter claims regarding the passage way, continuation of the stop construction order, dated 30.10.2021 would tantamount to be an action not conferred by law.

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18. As held in a catena of decisions including the decision referred to by the learned counsel for the petitioners, issues of ownership, right, title and interest including the right to passage are matters which are exclusively within the jurisdiction of a competent Civil Court and once the GMDA itself having held at, the said authority will not be justified at all in continuing the stop construction order.

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19. As admitted by the parties, till now the affected parties have not approached the

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appropriate legal forum, a liberty which was granted in the impugned order itself.

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20. In that view of the matter, this Court holds that the part of the order dated 21.01.2022 by which the stop construction order dated 30.10.2021 has been continued is not sustainable in law and is accordingly set aside.

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21. This Court however makes it clear that the aforesaid interference is only on the issue of jurisdiction and not on any other issue and in case the affected party approaches the Civil Court, the same shall be decided as per their own merits.

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22. Both the writ petitions accordingly stands allowed.

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JUDGE

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Comparing Assistant

Navarun Das and Anr. v. the State of Assam and 5 Ors.

Case brief

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What did the court decide?

Navarun Das and Anr. v. the State of Assam and 5 Ors.

Case brief

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