Pramod Kumar Sharma Vs the Guwahati Municipal Corporation and 7 Ors.

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GAHC010149802024

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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)/3758/2024

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PRAMOD KUMAR SHARMA S/O- LATE SHIV BHAGWAN SHARMA, C/O- M/S. SHREE ANAND JALPAN, G.S. ROAD, ULUBARI, KAMRUP(METRO), ASSAM.

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VERSUS

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THE GUWAHATI MUNICIPAL CORPORATION AND 7 ORS BHANGAGARH, GUWAHATI- 781001, REPRESENTED BY THE COMMISSIONER.

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2:THE COMMISSIONER GUWAHATI MUNICIPAL CORPORATION BHANGAGARH GUWAHATI- 781001.

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3:THE ASSOCIATE PLANNER GUWAHATI MUNICIPAL COOPERATION PLANNING BRANCH GUWAHATI- 781001.

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4:PRABIR PURKAYASTHA S/O- LATE JOGESH CHANDRA PURKAYASTHA RESIDENT OF 106 LACHIT NAGAR MAIN ROAD GUWAHATI- 781007.

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5:ARCHITA PURKAYASTHA D/O- LATE MAKHAN LAL CHAKRABORTY

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106

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LACHIT NAGAR MAIN ROAD GUWAHATI- 781007. 6:M/S. PROSPECTIVE CONSULTANTS PVT. LTD. REGISTERED OFFICE AT 35 VRINDABAN MARKET 2ND FLOOR SATI JOYMATI ROAD ATHGAON GUWAHATI- 781001. 7:KAJORI DEB WIFE OF LATE SOMNATH DEB RESIDENT OF RAJ RAJESHWARI ENCLAVE FLAT NO. 5-C PHASE-V BARWARI TALLA KESTOOPUR KOLKATA- 102. 8:SRESTHA DEB DAUGHTER OF LATE SOMNATH DEB RESIDENT OF RAJ RAJESHWARI ENCLAVE FLAT NO. 5-C PHASE-V BARWARI TALLA KESTOOPUR KOLKATA- 102

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Advocate for the Petitioner : MR G N SAHEWALLA, MS. H TALUKDAR,MR J CHOPRA,MR. V K CHOPRA

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Advocate for the Respondent : SC, GMC, MR D CHOUDHURY (r-4,5,6),MR M CHOUDHURY (r4,5,6),MR P J DAS (r-4,5,6)

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BEFORE

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HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI

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For the Petitioner : Shri GN Sahewalla, Sr. Advocate,

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Shri VK Chopra, Advocate.

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For the Respondents : Shri S Bora, SC, GMC,

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Shri D Choudhury, R/4, 5 & 6.

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Date of Hearing : 04.09.2025.

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Date of Judgment : 04.09.2025.

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Judgment & Order

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The approach to this Court by invoking the writ jurisdiction under Article 226 of the Constitution of India has been made challenging an order dated 15.07.2024 issued by the respondent no. 2 under Section 337(3) of the Guwahati Municipal Corporation Act, 1971.

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2. It is the case of the petitioner that though the impugned notice was issued in the name of the respondent no. 4, on the basis of the said notice, the tenanted premises of the petitioner has been partly demolished and there is an apprehension of further demolition of the other parts.

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3. The reliefs prayed for in this petition are extracted hereinbelow:

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“It is, therefore, prayed that Your Lordships may be pleased to issue a Rule calling upon the respondents no. 1 to 3 to show cause as to why the impugned Order dated 15/07/2024 issued the respondent no 2, on the basis of which the tenanted premises of the petitioner was partly demolished, should not be quashed.

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And why the petitioner shall not be compensated for the loss incurred to him due to illegal and arbitrary demolition of the premises of the

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petitioner wherein his articles of business were destroyed and the petitioner is suffering from loss of his livelihood business.

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And call for the records and on hearing such cause or causes as may be shown by the respondents, make the Rule absolute and/or pass such or further orders as to Your Lordships may seem fit and proper.

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And in interim, the operation of the impugned Order dated 15/07/2024 ” issued by the respondent no 2 may kindly be stayed .

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4. I have heard Shri GN Sahewalla, the learned Senior Counsel assisted by Shri VK Chopra, learned counsel for the petitioner. I have also heard Shri S Bora, learned Standing Counsel, Guwahati Municipal Corporation (GMC) as well as Shri M Choudhury, learned counsel for the respondent nos. 4, 5 and 6.

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5. Shri Sahewalla, learned Senior Counsel has submitted that there is a civil dispute going on between the private respondents and the petitioner, who are the tenants. He has submitted that the petitioners were the tenants of the erstwhile owner who had sold the property to the private respondent nos. 4, 5 and 6. The said private respondents have instituted a title suit for ejectment which is presently pending. He has submitted that even the application for injunction filed by the respondent no. 4 has been rejected. On the other hand, the petitioner has also instituted a suit seeking for a decree not to evict him without following the due process of law which was decreed and there is no further appeal preferred against the same. However, the respondent no. 2 had issued the impugned order dated 15.07.2024 and though the same was in the name of the respondent no. 4, it is the premises of the petitioner which has been partly demolished. He has submitted that notice which was issued prior to the impugned order dated 15.07.2024 was only on

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the aspect of the boundary wall and setback area and not to any other aspect whereas in the impugned order dated 15.07.2024, several other aspects have been taken into consideration without giving the proper opportunity. The learned Senior Counsel for the petitioner submits that the order dated 15.07.2024 itself being illegal, all subsequent actions of causing demolition are illegal and are to be declared as such. He has also submitted that appropriate directions be issued for payment of compensation and damage.

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6. Per Contra, Shri Bora, learned Standing Counsel, GMC has clarified that the initial order dated 28.09.2023 was not a notice per se but was only a communication asking the petitioner to provide the necessary documents in connection with the construction. He has reiterated that the said communication was not issued to the respondent no. 4 but to the petitioner and cannot be construed to be a show cause notice. He has submitted that the communication issued on 15.07.2024 has been done by fully adhering to the law and since it was found that the structure in question was constructed without due permission and without following the norms required, the demolition was done which is strictly in accordance with law.

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7. Shri Choudhury, learned counsel for the private respondent nos. 4, 5 and 6 has submitted that the construction in question is not done by his clients but by the petitioner in violation of the tenancy agreement and therefore, the action taken by the GMC cannot be faulted with. He has also reiterated that proper notice was issued to the petitioner before the demolition activities were carried out.

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8. The rival submissions have been duly considered and the materials on records carefully examined.

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9. It appears that there is a civil dispute between the petitioner, who is the tenant

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and the owners-respondent nos. 4, 5 and 6. The said dispute is on the aspect of ejectment of the petitioner. This Court has also noted that in the suit filed by the petitioner, there is a decree not to evict the petitioner without following the due process of law. The learned counsel for the petitioner has contended that the instant impugned action has been done on the behest of the third party, who has allegedly lodged a complaint. It is tried to be projected that the action has been taken without any bona fides and only as a tactic to evict the petitioner from the tenanted premises.

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Such contentions are, however strenuously disputed on behalf of the private respondent nos. 4, 5 and 6.

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10. Be that as it may, this Court has noted that pursuant to the impugned order dated 15.07.2024, the premise in question has been demolished to a great extent. While the petitioner has contended that the premise is a temporary structure, the GMC, in its affidavit has clearly stated that the structure of the ground floor was RCC and there were CI Sheets on the first floor and the said construction was done without following the due process of law. This Court is of the opinion that the allegations and counter allegations are in the realm of disputed questions of fact which, this Court may not be in a position to make any determination. The subsequent prayer for compensation is directly connected with the first prayer to declare the order dated 15.07.2024 as well as the subsequent action as illegal. This Court is of the considered opinion that since the demolition has already been done pursuant to the order dated 15.07.2024, no effective adjudication or relief can be granted to the petitioner in the instant case. As mentioned above, the aspect of disputed questions of fact is also there which is required to be raised and adjudicated before the competent Civil Court. This Court is of the view that in the event, the petitioner is successful in making out a case that the impugned action is illegal, the consequential aspect of assessing the damage would undoubtedly require adducing of evidence as the damage is not an unliquidated damage but one which has to be based on the damages actually caused

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or suffered to the petitioner.

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11. In view of the aforesaid discourse, while this petition is closed, liberty is granted to the petitioner to approach the appropriate Civil Court for the relief.

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12. Shri Sahewalla, learned Senior Counsel for the petitioner, at this stage, submits that there is an interim order by which, further demolition was stayed.

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13. To balance the equities, it is directed that the liberty granted to the petitioner to approach the Civil Court be availed within an outer limit of 5 weeks from today. The petitioner would also be at liberty to pray for an injunction along with the suit. In this period of 5 weeks or till such consideration of the interim relief, the interim order passed by this Court shall remain in operative.

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14. The writ petition accordingly stands disposed of.

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JUDGE

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Comparing Assistant

Pramod Kumar Sharma v. the Guwahati Municipal Corporation and 7 Ors.

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Pramod Kumar Sharma v. the Guwahati Municipal Corporation and 7 Ors.

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