Dhiraj Das Vs the State of Assam and 4 Ors.

Heard Mr. B. Chakraborty, learned counsel for the petitioner. Also heard Mr. D. Das, learned Senior Counsel assisted by Mr. D. Choudhury, learned counsel for the respondents.

¶28

The facts shorn of unnecessary details as contended before this Court are that the petitioner is a resident of Ward No.4, Pathsala Town Committee, District- Barpeta. The petitioner was granted an No Objection Certificate (NOC) for construction of a RCC building (G+1) by the Pathsala Town Committee. The said building was sought to be constructed on the plot of land belonging to the petitioner measuring 3 Katha 11 Lechas covered by Dag No.435 and 441, Patta No.110 in Ward No.4, Mouza- Uttar Bajali, Pathsala Town of Pathasala. The said land was purchased by the petitioner by executing a Registered Sale Deed. By order dated 06.10.1997 passed by the Circle Officer in Mutation Case No.26/1995-96, the land was mutated in the name of the petitioner. Since then the petitioner has been

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living in peaceful possession of the said land.

¶31

The petitioner was issued the NOC by order dated 19.08.2011 by the Pathsala Town Committee for construction of RCC (G+1) building. Thereafter, the petitioner again applied for permission before the Pathsala Town Committee for construction of 2^nd Floor of the existing RCC building. This application was filed by furnishing all necessary documents which was duly accorded on 30.07.2012 by the Pathsala Town Committee after being satisfied with all papers filed by the petitioner in support of his application seeking the building permission.

¶32

Pursuant to the permission being granted the petitioner proceeded for construction of the 2^nd Floor. When the construction was on the verge of completion, the private respondent no.4 filed a complaint before the Pathsala Town Committee in connection with the construction undertaken by the petitioner. The said complaint was filed by the respondent no.4 alleging that the petitioner had constructed the building by violating the norms prescribed. Pursuant to the complaint raised, the Pathsala Town Committee issued an order dated 24.03.2014 directing the petitioner to “Stop Construction”. On being served with this “Stop Construction” Notice, the petitioner filed a reply denying the allegations made in the complaint and questioning the locus of the respondent no.4 in filing the complaint and requested the Pathsala Town Committee to revoke the “Stop Construction” order and permit to the petitioner for proceed with the construction.

¶33

Since the Pathsala Town Committee Authority did not proceed to adjudicate the matter, the petitioner filed another application before the

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Town Committee for expeditious disposal of the complaint. While the matter was pending before the Pathsala Town Committee, the private respondent no.4 preferred an appeal before the Appellate Authority prescribed under Section 43 of the Assam Town & Country Planning Act, 1959. In the said appeal the permission dated 19.08.2011 and 30.07.2012 issued by the Pathsala Town Committee came to be challenged. The Appellate Authority by order dated 22.04.2014 issued notice on the respondent directing the respondent namely the petitioner herein to appear before the Court on the date fixed and asked the petitioner not to continue the construction of the building which has already been stopped by the Pathsala Town Committee.

¶36

Being aggrieved by the order dated 22.04.2014 passed by the Appellate Authority under the Assam Town & Country Planning Act, 1959 invoking it’s jurisdiction the present writ petition has been filed by the petitioner. While issuing notice this Court by order dated 20.06.2014 directed that the Parties shall maintain status quo in respect of the construction carried on by the writ petitioner as well as the proceedings before the Appellate Court till the returnable date. Subsequently, the interim order was extended and the same continues to operate till date.

¶37

The learned counsel for the petitioner has placed before this Court that the Appellate Authority under the Town & Country Planning has no jurisdiction to entertain any application to entertain any complaint for violation of NOCs issued by Pathsala Town Committee. It is submitted that the impugned order passed by the Authority is without jurisdiction as the Appellate Authority is an authority prescribed under the Assam Town & Country Planning Act, 1959 where as the NOC was issued by the Pathsala

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Town Committee under the Assam Municipal Act, 1956. It is submitted that both these two statutes operate in different fields. The respondent no.4 if aggrieved could have taken recourse to the forum prescribed under the Assam Municipal Act, 1956.

¶40

The learned counsel for the petitioner submits that since both these statues operate in different fields, any action or in-action under the Assam Municipal Act, 1956 cannot be assailed before the appellate forum prescribed under the Assam Town & Country Planning Act, 1959. He submits that for adjudicating complaint regarding NOCs by the Town Committee, the appropriate forum is the Municipal Board or the Town Committee.

¶41

The learned counsel for the petitioner submits that the matter is still pending before the town committee. Where the town committee was already in seisin of the matter, there was no occasion for the Appellate Authority under the Assam Town & Country Planning Act, 1959 to assume jurisdiction on an appeal filed by the petitioner. He therefore submits that the impugned order be interfered with, set aside and quashed and the Pathsala Municipal Board as it is presently known, be directed to withdraw the “Stop Construction” Notice on the writ petitioner permitting him to proceed with the constructions.

¶42

The learned counsel for the Pathsala Municipal Board submits that the “Stop Construction” Notice was issued because of complaints were made against the petitioner that he had violated the specific provisions in the NOC issued earlier. He therefore submits that the matter should be permitted to

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be decided by the Municipal Board/Town Committee by passing appropriate orders thereon. He submits that an affidavit to that effect has been filed on behalf of the Pathsala Town Committee.

¶45

Mr. D. Das, learned Senior Counsel assisted by Mr. D. Choudhury, learned counsel for the respondent no.4 strongly objected to the submissions of the counsel for the petitioner. Mr. Das disputes the contentions raised by the petitioner and he submits that the respondent no.4 has filed his affidavit opposing the claims made by the petitioner. He submits that the question as to whether the Appellate Authority prescribed under the Assam Town & Country Planning Act, 1959 can hear and redress the grievances in respect of violations regarding “set back” is already settled by a Judgment of a Coordinate Bench of this Court and which subsequently, came to be upheld by the Division Bench of this Court. The learned Senior Counsel has referred to the Judgment rendered by a Coordinate Bench in Anurag Agarwal Vs. State of Assam & Others reported in 2012 (3) GLT 163. Referring to the relevant paragraphs he submits that the Coordinate Bench in similar facts and circumstances while deciding on the question of an appeal filed before the Appellate Authority prescribed under Assam Town & Country Planning Act held that the said Appellate Authority will have jurisdiction to entertain appeals against “Stop Construction” Notice issued by the Development Authority and had accordingly answered specifically that the appeal is maintainable and persons aggrieved by the such orders can approach the Appellate Authority prescribed under Sections 43 & 44 of the Assam Town & Country Planning Act, 1959. This order was subsequently upheld by a Division Bench rendered in “Writ Appeal No. 77/2012, (The Station Commander Vs. Anurag Agarwal.)”

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The learned counsel for the respondent no.4 therefore submits that there is no infirmity in the impugned order passed by the Appellate Authority impugned in the present writ petition. The Appellate Authority should therefore be permitted to proceed with the appeal filed by the writ petitioner and pass appropriate orders thereon as per provisions of law. It is submitted that if the petitioner is aggrieved by any order passed by the Appellate Authority, he may seek redressal of his grievances in forms prescribed under law, including this Court. He therefore submits that the writ petition should be dismissed, the status quo order be vacated and the Appellate Authority constituted under the Assam Town & Country Planning Act, 1959, be permitted to proceed with the appeal filed by the respondent no.4.

¶48

The learned counsel for the parties have been heard. Pleadings available on records have been carefully perused.

¶49

In order to effectively decide the issue before this Court, reference to the provisions of the statutes are necessary. Section 171 of the Assam Municipal Act, 1956 provides that no Construction of Building is permissible without sanction. Section 174 of the Act confers powers on the Municipal Board to sanction or refuse or sanction it absolutely or subject to such modifications in case of any complaint received with regard to construction in violation of the sanction earlier granted. Section 174(3) provides that it shall be obligatory for the Board to conform to the land use pattern and zoning plan prepared by or under the authority of the State Government. The appeals to be preferred under Section 321 and Section 321(1) are clearly specified. Under Section 322 appeals are permitted from orders

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issued by the Board for refusing license or permission. Furthermore under Section 23 of the Assam Municipal Act, 1956 ‘‘Local authority’’ includes Local Boards, Municipal Boards, Town Committees and Panchayat. Under Section 336(3) of the Assam Municipal Act, 1956 it is provided that for the purposes of any Section of the Act which may be extended to a notified area, or which applies to the notified areas automatically, the Town Committee constituted for such an area under Section 335 shall be deemed to be a municipal Board under this Act, the notified area to be municipality and the member to be a Commissioner.

¶52

The relevant provisions of the Act are extracted below :-

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171. Prohibition of building without sanction. -(1) No person shall erect materially alter or re-erect commence to erect materially alter or re-erect any building without sanction of the Board :

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1 [***]

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(2) Every person who intends to erect, materially alter or re-erect any building shall give notice in writing to the Board of such intention.

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(3) When bye-laws have been framed under Section 302, no notice under sub-section (2) shall be considered to be valid until notice is served under clause (iii) with such information as is necessary under clause (iv) of that Section.

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Explanation.- An alteration in a building for the purpose of this Section and of bye-laws be deemed to be material if it,-

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(a) affects or is likely to affect prejudicially the stability or safety of the building or the condition of the building in respect of drainage, ventilation or hygiene; or

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(b) increases or diminishes the height or area covered by, or the cubical capacity of the building, or room in the building.

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(4) In the municipalities where water words are maintained it shall be compulsory for persons erecting or re-erecting buildings costing Rs. 5,000/- or more (excluding cost of land of improvement of land) to install sanitary latrines. The Board shall with hold sanction if the plan and specification of the building submitted with the notice do not contain provision for installation of sanitary latrines.

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174. Powers of Board to sanction on refuse. - (1) Within one month after the receipt of the notice required by Section 171, sub-section (2), or clause (iii) of Section 302, the Board may refuse to the building or may sanction it either absolutely or subject to such modification as it may deem fit in respect of all or any or the matters specified in Section 302 clause (iv); and the person erecting, materially altering or re-erecting any such building as aforesaid shall comply with the sanction of the Boards as granted in every particular.

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(2) Should the Board neglect or omit for one month after the receipt of a valid notice to make and deliver to the person who has given notice an order of sanction of refusal in respect thereof, it shall be deemed to have sanctioned the proposed building absolutely.

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Explanation.- The Board may refuse to sanction the erection material alternation or re-erection of any building either on the grounds affecting the particular building or in pursuance of a general scheme adopted by the Board at a meeting restricting erection or re-erection of building of any class of buildings within specified limits for the prevention of overcrowding, or in the interest of the residents within such limits or for any other public purpose. Permission may also be refused in any case in which there is any dispute between the Board and the applicant as to the title of the land on it is proposed to erect the building until such dispute is decided.

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(3) In giving permission for the building it shall be obligatory for the board to conform to the land use pattern and zoning plan prepared by or under the authority of the State Government.

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(4) The Board shall prepare within a specified period, to be decided upon by the State Government, road classification and road offset line and in giving building or land use permission the Board shall conform to the road classification and road offset line and shall carry out the planning directions given by the State Government.

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Explanation.-Road offset line means a uniform distance measured from the centre of the road and prescribed on either side of the road as the line beyond which only any construction of house, wall or other fixtures is permissible.

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321. Appeals from orders of Board. - (1) Any person aggrieved,-

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(a) By the refusal of the Board under Section 174 to sanction the erection, re-erection or material alteration of any building or

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(b) By a notice from the Board under Section 155 requiring a road to be drained, leveled, paved, flagged, metalled or provided with proper means of lighting or under Section 77 requiring the alteration or demolition of a building or

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(c) By a order made by the Board under bye-law made under Section 302, clause (iv) or

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(d) By any order made by the Board under the powers conferred upon it by Section 181 or 255.

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May apply within thirty days from the date of such refusal, notice or order to the Board and every such appeal shall be heard and determined by not less than three members of the Board who shall be appointed in that behalf by the Board at a meeting, and no such refusal, notice or order shall be liable to be called question otherwise than by such an appeal.

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(2) The appellate authority may for sufficient cause extend the period allowed by sub-section (1) of this Section for appeal.

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(3) The order of the appellate authority confirming, setting aside or

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modifying the prohibition, notice or order appealed from, shall be final :

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Provided that the prohibition notice or order shall not be modified or set aside until the appellant and the Board have had reasonable opportunity of being heard.

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322. Appeals from orders refusing licences. – Any person aggrieved by an order refusing a licence or permission required under this Act, may notiwithstanding anything contained elsewhere in this Act, within thirty days from the date of refusal, appeal to the State Government or an officer authorized by the State Government in that behalf whose decision shall be final and shall not be questioned in any Court.

¶81

Under the Assam Town & Country Planning Act, 1959 Section 2(1) defines ‘Authority’ to mean the Local or Regional Authority appointed by the State Government for the purposes of administering the Act and unless otherwise appointed by the State Government, the Authority in the case of Municipal Areas shall be the Municipal Boards under the Assam Municipal Act, 1956 (Assam Act XV of 1957) [or the Development Authority constituted under Section 8 of the Act].

¶82

The preamble of the Act of 1956 provides as under :-

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Preamble.- Whereas it is expedient further to amend the Assam Municipal Act, 1956, hereinafter referred to as the principal Act, in the manner hereinafter appearing;

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It is hereby enacted in the Sixty-sixth year of the Republic of India.

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Under Chapter VIII of the Act of 1959 provisions for appeals and the concern Appellate Authorities are provided. The Sections referred above for convenience are extracted below :-

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43. Appointment of Appellate Authority .- (1) Save as otherwise provided, the State Government shall appoint an Appellate Authority to hear all appeals arising out of the provisions of this Act. The decision of Appellate Authority shall be final.

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(2) The person or persons appointed by the State Government as Appellate Authority shall have the qualification of a District Judge [or of becoming a member of the Assam Board of Revenue constituted under the Assam Board of Revenue Act, 1962 (Assam Act No. XXI of 1962)]. The appointment shall be on such terms and conditions as the State Government may decide.

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44. Duties of the Appellate Authority .- (1) The duties and powers of the Appellate Authority shall be as follows:-

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(a) to hear and decide appeals against the orders of the Authority;

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(b) to decide and hear appeals in respect of such other matters and exercise such other powers as may be entrusted to and conferred upon it by the State Government in accordance with the provisions of this Act.

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(2) All appeals to the Appellate Authority shall be filed within a month from the date of the order appealed against. The time required for taking out copies of the order shall be excluded. The Appellate Authority may, however, in its discretion condone such delay in filing appeal for sufficient reasons.

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45. Procedure of working of the Appellate Authority .- (1) The Appellate Authority shall conduct its proceedings in the prescribed manner after giving the opposite party or anyone interested in the order appealed against an opportunity of being heard.

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(2) The Appellate Authority may, at any time, call for any extract from any proceeding of the State Government or Authority and call for any return or statement or report concerning or connected with any matter with which the authority has been authorized to deal.

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(3) The Appellate Authority shall have all the powers of a Civil Court for the purposes of taking evidence on oath and of enforcing the attendance of

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witnesses including the parties interested or any of them and compelling the production of documents and material objection if considered necessary.

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(4) The Appellate Authority in its discretion may make any orders regarding the costs to be paid by any of the parties to the proceedings and the Appellate authority shall have full powers to determine by whom or out of what property and to what extent such costs are to be paid and the authority shall be bound to execute the orders of the Appellate Authority in accordance with the directions, if any, contained in the order and such costs or amounts awarded by the Appellate Authority shall be realized as arrears of land revenue.

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46. Right to appear by recognized agent .- Every party to any proceeding before the Appellate Authority shall be entitle to appear either in person or by his recognized agent.

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47. Protection of action taken under this Act .- (1) No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any other made thereunder.

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(2) Save as otherwise expressly provided in this Act, no suit or other legal proceeding shall lie against the State Government for any damage caused or likely to be caused by anything in good faith done or intended to be done in pursuance of this Act or any order made thereunder.

¶102

A perusal of the provisions above show that the municipal board has powers to grant sanction to any person for erection of a building. An application made by any person for sanction for erection of a building under Section 171 may be refused by the Municipal Board under Section 174. Under Section 174(3) it is seen that while giving permission to a building it shall be obligatory for the Board to confirm to the land use pattern and zoning plan prepared by or under the State Government. Under Section 336(3) of the Assam Municipal Act, 1956 it is provided that for the purposes

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of any Section of this Act which may be extended to a notified area or which applies to notified areas automatically, town committee constituted such an area under Section 335 shall be deemed to be a municipal board under this Act and the notified area to be municipality and the member to be a commissioner.

¶105

A careful perusal of the provisions of the Municipal Act makes it clear that even in any areas which are under town committee as in the case of the Pathsala Town Committee at the time of issuing the NOC to the petitioner, under the provisions of Section 336(3) it shall be considered to be a Municipal Board and the town committee area will be construed to be a municipality area and the member of the town committee to be considered as Commissioner. This makes it clear that the provisions of the Assam Municipal Act, 1956 are also applicable in areas which are under the control of town committees as it then was and the provisions of this Act will apply uniformly, except those specifically excluded, to all such orders as may be passed by any town committee including the Pathsala Town Committee. It is also clear that while issuing an NOC to any person for erection or re-erection of any building, the town committee will have to follow all these zoning norms and plans prepared by or any authority under the Government. As such it is clear that while issuing the NOC by the Pathsala Town Committee as it then was, it was obligatory on the town committee to ensure that all zoning norms have been thoroughly complied with by the applicant namely the petitioner herein. Under provisions of the General Clauses Act 1897, a power to issue will also include the power to modify and recall any order. When the respondents filed the complaint before the Town Committee authorities and the Town Committee

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subsequently suspended the sanction issued, it was found that there had been a violation of zoning norms.

¶108

The question therefore is that in the event of any violation by any party of any of the zoning norms leading to suspension or recall of the sanction granted by the town committee/municipal authorities, whether a further remedy is available to the affected party and if so under which statute.

¶109

This is because of the fact that the provisions of appeal as prescribed under Section 321 render the Municipal Act, 1956 are only in respect of the following matters :-

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Appeals from orders of Board.- (1) Any person aggrieved,-

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(a) By the refusal of the Board under Section 174 to sanction the erection, re-erection or material alternation of any building or

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(b) By a notice from the Board under Section 155 requiring a road to be drained, leveled, paved, flagged, metalled or provided with proper means of lighting or under Section 77 requiring the alteration or demolition of a building or

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(c) By a order made by the Board under bye-law made under Section 302, clause (iv) or

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(d) By any order made by the Board under the powers conferred upon it by Section 181 or 255.

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Under Section 322 of the Municipal Act, 1956, the appeals lie before the appellate authority from orders refusing grant licence. There is no specific provision for appeal prescribed under the Assam Municipal Act,

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1956 in respect of orders passed regarding grant of sanction which is questioned on the premise of violation of the zoning norms.

¶118

As such there appears to be no form for appeals to adjudicate any matter relating to issuance/cancellations of NOCs where violation of zoning norms are alleged or questioned. This issue came to be decided by Coordinate bench in Anurag Agarwal (supra) by the Judgment and Order dated 10.01.2012. The Co-ordinate bench held that the proposition that against an order of demolition of a building or against the “stop construction order” an aggrieved person will have no statutory remedy by way of an appeal would be an absurd reading of the provisions of the said Act. The Co-ordinate bench held that against the “stop construction order” of the authority an appeal lies before the appellate authority under the said Act namely the Assam Town and Country Planning Act, 1959. Relevant paragraphs of the Judgment are extracted bellow :-

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(41) The argument of Mr. Das, the learned Senior Counsel for the petitioner, that the provision of appeal under the state Act should be confined to matters of compensation and betterment fee as provided in Section 42, which finds place in chapter VII dealing with payment of compensation and levy of betterment fee, therefore the right of appeal under the state Act is circumscribed by chapter VII and that the expression "to hear all appeals arising out of the provisions of this Act" has to be understood in the context of section 42 of the state Act, gives a very narrow /restricted interpretation to the appellate provision. If the said submission/interpretation is accepted, it will lead to a situation where an appeal can be filed only against an award of compensation or against the levy of a betterment fee, leaving out persons who may be aggrieved by various orders passed or steps taken under the provisions of the state Act without any statutory remedy. Such a construction would be inconsistent

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and incompatible with the scheme of the state Act, more so when there are drastic provisions like stopping constructions or demolition of any construction. To say that against an order of demolition of a building or against a stop construction order, an aggrieved person will have no statutory remedy by way of an appeal would be an absurd reading of the provisions of the state Act. As pointed out above, there is no contradiction between the provisions of sections 42 and 43 of the state Act in as much as an appeal can be filed against any order of the authority passed under the provisions of the Act, including against an award of compensation or against a levy of betterment fee. Therefore, I hold that against a stop construction order of the authority, an appeal lies before the appellate authority under the state Act. So the contention of the petitioner that there is no appellate provision under the state Act against the stop construction order passed by the Development Authority cannot be accepted and is accordingly rejected.

¶122

(42) Having held that an appeal lies against the stop construction order passed by the Development Authority, let us now turn to the facts of the present case. A few questions arise for consideration at this stage viz,

¶123

(1) Whether the respondent No. 4 i. e., the Station Commander, Tezpur Military Station has the right to file appeal under the state Act against the building permission granted to the petitioner by the Develop-ment Authority ?

¶124

(2) Whether the appeal dated 07. 10. 2010 filed by the respondent No. 4 is an appeal at all in the eye of law?

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(3) Whether such an appellate proceeding would offer an adequate and efficacious alternative remedy to the petitioner? (4) Whether non-filing of any appeal by the petitioner against the stop construction order dated 05. 01. 2011 would be fatal to his cause as espoused in the present proceeding ?

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(43) In so far the first question is concerned, the answer can be found in the language of Sections 43 and 44 of the state Act itself. As already noticed, the appellate authority is to hear all appeals arising out of the provisions of the state Act and it has the duty and power to hear and decide any appeal against an order of the authority. Building permission granted or a NOC issued by the authority for construction of a building would be an order of the authority within the meaning of section 44 (1) (a) of the state Act. As such, an appeal filed against such a building permission or NOC would be an appeal arising out of the provisions of the state Act. Any person who is aggrieved by such a building permission or NOC would be entitled to file an appeal against it. Evidently, the respondent No. 4 is aggrieved by the building permission granted to the petitioner for the reasons already indicated. Therefore, the respondent No. 4 has the right to file an appeal under the state Act against the building permission granted to the petitioner by the Development Authority.

¶128

Against this Judgment and Order, an appeal was preferred by the Authority. This appeal came to be upheld by a Division Bench which was rendered in Writ Appeal No. 77/2012. Under such circumstances, the view of a Co-ordinate Bench that an appeal against an order of stop construction of demolition of building would lie before the appellate authority prescribed under the Assam Town and Country Planning Act, 1959 and which Judgment has been confirmed by Division Bench Judgment, the same is therefore binding on this Court.

¶129

Under such circumstances and view of a judgment referred above, this Court holds that the primary issue raised by the writ petitioner that the appeal filed by the private respondent before the appellate authority under the Assam Town and Country Planning Act, 1959 and the contention of the petitioner that the Appellate Authority had no powers to assume jurisdiction

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therefore cannot be accepted. The contention of the learned counsel for the petitioner therefore fails and the writ petition stands dismissed. Interim order passed earlier stands vacated. No order as to cost.

¶132

The Appellate Authority under the Assam Town and Country Planning Act, 1959, will now proceed to decide the appeal filed by the respondents and dispose of the same expeditiously. The question of whether Respondent No. 4 is an aggrieved party under the Assam Town & Country Planning Act, 1959, will also be addressed by the Appellate Authority while considering the appeal.

¶133

The Writ Petition is accordingly disposed of in terms of the above, with no order as to costs.

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JUDGE

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Dhiraj Das v. the State of Assam and 4 Ors.

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