Disposed¶40

Diganta Choudhury and Anr. v. the State of Assam and 9 Ors.

Gauhati HC12 Mar 2025WP(C)/5261/2024

Case brief

AI extract

What is this about?

Foot over bridge; PWD (Roads) NOC; GMDA right of way (ROW); District Disaster Management Authority; Disaster Management Act, 2005; District Magistrate Kamrup (M); high tension line clearance; 11 KV line shifting; Zoo Road Electrical Sub-Division; Gurukul Educational Trust; Gurukul Senior Secondary School Guwahati; public nuisance, obstruction, health hazard; judicial review and apprehended disaster; NOC cancellation conditions; interim order vacated; writ petition closed; WP(C)/5261/2024; Arun Dev Choudhury; 13.03.2025; Gauhati High Court.

What did the court decide?

No relief to the petitioners: the writ petition stands closed and the interim order earlier passed stands vacated; the petitioners retain liberty to approach the competent authority if the construction is not carried out as per the NOC. ¶40

Diganta Choudhury and Anr. Vs the State of Assam and 9 Ors. — Gauhati HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

¶40

Issue for consideration

Whether the petitioners' writ petition — alleging that respondent No. 7's construction of a foot over bridge causes severe public nuisance, obstruction and health hazard — warranted judicial intervention despite the permissions granted by the competent authorities. +1 more

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Court's answer

When the competent authorities — the GMC, the Electricity Authority, and the most competent authority in this regard, the District (Disaster) Management Authority — have, after due consideration, granted the permission, the petitioners should have no further apprehension, as this court cannot endeavour to deal with an apprehended disaster in exercise of its power of judicial review.

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Ratio / Principle

The PWD (Roads) NOC requires construction in strict adherence to its enumerated conditions and reserves the right to cancel the NOC if the conditions are not fulfilled or in future events of traffic mismanagement, public harassment etc.; therefore the petitioners shall always be at liberty to approach the competent authority if such construction is not carried out as per the NOC.

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Key takeaways

While parting with the record, the court made clear that it has not commented on the merit of the NOC or of the order of the District Magistrate passed under the Disaster Management Act, 2005.obiter¶41

Detailed headnote1 paragraphs

Gauhati High Court (Justice Arun Dev Choudhury) — WP(C)/5261/2024, decided 13.03.2025. Residents of Mother Teresa Road, Pub Geetanagar, Guwahati petitioned against respondent No. 7 (Gurukul Educational Trust) constructing a foot over bridge over a PWD road connecting the two campuses of Gurukul Senior Secondary School, alleging severe public nuisance, obstruction and health hazard, with a high tension electric line passing over the site. Tracing the chain of approvals — the PWD NOC of 17.04.2021 with eight conditions, GMDA's communication of 08.09.2022 identifying PWD as the competent NOC authority for a right of way, the modified PWD NOC of 05.07.2023 with expanded cancellation rights, the District Disaster Management Authority's permission of 19.08.2024, and the Zoo Road Electrical Sub-Division's safety report finding sufficient clearance after the school shifted the 11 KV line — the court held that where competent authorities (GMC, the Electricity Authority and the District Disaster Management Authority) grant permission after due consideration, the petitioners' apprehensions need not be entertained, as judicial review cannot address an apprehended disaster. Noting PWD's reserved right to cancel the NOC for breach of conditions or traffic mismanagement/public harassment, the court held the petitioners remain at liberty to approach the competent authority if construction deviates from the NOC. The writ petition was closed and the interim order vacated, the court expressly refraining from commenting on the merits of the NOC or the District Magistrate's order under the Disaster Management Act, 2005.

Page No.# 1/6

GAHC010247832024

2025:GAU-AS:2702

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

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Case No. : WP(C)/5261/2024

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DIGANTA CHOUDHURY AND ANR S/O- LATE GOBINDA CHOUDHURY R/O- GHARMARA SATRA PATH NORTH-EAST GEETA NAGAR MOUZA- BELTOLA P.S. NOONMATI GHY-781020 DIST. KAMRUP(M) ASSAM 2: DIPAK RAY S/O- NIRE RAY R/O- 2 NO. MOTHARIA HRIPUR GHY-781020 DIST. KAMRUP(M) ASSAM VERSUS

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THE STATE OF ASSAM AND 9 ORS REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM 2:THE DEPUTY COMMISSIONER KAMRUP(M) GUWAHATI ASSAM PIN- 781001. 3:PUBLIC WORKS DEPARTMENT (ROADS) ASSAM CHANDMARI GHY-781003

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Page No.# 2/6

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REPRESENTED BY ITS CHIEF ENGINEER.

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4:CHIEF ENGINEER PUBLIC WORKS DEPARTMENT (ROADS) ASSAM CHANDMARI GHY-781003. 5:GUWAHATI MUNICIPALCORPORATION REPRESENTED BY ITS COMMISSIONER GHY-781003. 6:THE GUWAHATI MUNICIPAL DEVELOPMENT AUTHORITY REPRESENTED BY THE CHIEF EXECUTIVE OFFICER GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY STATFED BUILDING BHANGAGARH GHY-781005.

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7:GURUKUL EDUCATIONAL TRUST REPRESENTED BY ITS SECRETARY NAMELY BASANTA KUMAR BHUYAN MOTHER TERESA ROAD PUB- GEETANAGAR GHY-781020 KAMRUP(M) ASSAM

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8:BASANTA KUMAR BHUYAN SECRETARY GURUKUL EDUCATIONAL TRUST GURUKUL SENIOR SECONDARY SCHOOL MOTHER TERESA ROAD PUB-GEETANAGAR GHY-781020 KAMRUP(M) ASSAM

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9:GURUKUL SENIOR SECONDARY SCHOOL REPRESENTED BY ITS PRINCIPAL MOTHER TERESA ROAD PUB-GEETANAGAR GHY-781020 KAMRUP(M) ASSAM 10:THE PRINCIPAL GURUKUL SENIOR SECONDARY SCHOOL

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MOTHER TERESA ROAD PUB-GEETANAGAR GHY-781020 KAMRUP(M) ASSAM

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-----------Advocate for : MR. N N JHA Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 9 ORS

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BEFORE

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THE HON’BLE MR JUSTICE ARUN DEV CHOUDHURY O R D E R

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13.03.2025

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Heard Mr. NN Jha, learned counsel for the petitioners. Also heard Mr. P Nayak, learned standing counsel for the Public Works Department appearing for the respondent Nos. 3,4 and 5 and Mr. S Baruah, learned State counsel appearing for the respondent No. 1 and Mr. KN Choudhury, learned Senior counsel assisted by Mr. SP Sharma, learned counsel for the respondent Nos. 7 to 10.

¶21

Instead of taking up the I.A., the entire writ petition is taken up for final consideration today inasmuch as it is the submission of Mr. K N Choudhury, learned Senior counsel that I.A. may be treated as their pleadings.

¶22

The petitioners herein, who claim to be residents of Mother Teresa Road, Pub Geetanagar, Guwahati had preferred the present writ petition with a grievance that the respondent No. 7 has started construction of a foot over bridge causing severe public nuisance, obstruction, health hazard and in this regard the District Magistrate, Kamrup (M) under its order dated 11.09.2024, on the basis of complaint lodged by the residents of locality asked the SubDivisional Engineer, Zoo Road Electrical Sub-Division to ascertain the issue

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inasmuch as high tension electrical line passes over the road and also directed to submit a No Objection Certificate in this regard.

¶25

In the meantime, the IA has been filed and the respondent No. 7 brought on record certain documents and contends that all the required permission has been obtained.

¶26

It is not disputed that the District Magistrate, Kamrup (M) has exercised its power in this regard under the Disaster Management Act, 2005 being the District Disaster Management Authority.

¶27

From the record, it is seen that an application was filed by the respondent No. 7 on 28.12.2020 seeking no objection for the construction of a foot over bridge on PWD road for connecting the two campuses of the Gurukul Senior Secondary School. Accordingly, the Chief Engineer, PWD Road, Assam by its communication dated 17.04.2021 addressed to respondent No. 7 granted NOC with 8 (eight) conditions and it was provided that the construction shall be subject to strict adherence of the aforesaid conditions. A condition that PWD Road reserves the right to cancel the NOC for breach of any of the conditions enumerated in the NOC granted on 17.04.2021 was also there.

¶28

The respondent No. 7, in the meantime, also filed an application before the Chief Executive Officer, Guwahati Metropolitan Development Authority seeking approval for construction of foot over bridge in question. However, by its communication dated 08.09.2022, the Chief Executive Officer of GMDA intimated the petitioners that since the construction is proposed over a right of way (ROW) and therefore, competent authority of issuance of NOC is the Public Works Department.

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It is also seen that subsequently yet another NOC was issued on

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05.07.2023 by the Public Works Department with certain modification in the

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terms and conditions with a right of PWD road to cancel the NOC not only for violation of conditions but also for the interest of safe condition of road, safety of pedestrian and vehicular traffic. Along with the aforesaid NOC, the drawing proposed was also approved by Additional Director of Design, office of the Chief Engineer, PWD Road.

¶33

In the meantime, yet another development took place is that the Disaster Management Authority on 19.08.2024, accorded permission to the respondent No. 7 to go ahead with the construction of the foot over bridge subject to adherence all the norms mentioned in the NOC received from competent authority.

¶34

As a dispute was raised as regards the electrical safety, for the reason of a high tension electric line passes over the proposed construction, an NOC was also sought from the concerned electricity authority i.e. the Sub-Divisional Engineer, Zoo Road Electrical Sub-Division by the District Magistrate, Kamrup (M). It was intimated that after field verification, the District Magistrate observed that a high tension electrical line passes over the road and as the road connecting foot bridge to be constructed, the electricity authority are to issue NOC clarifying the minimum distance that need to be maintained from the high tension line. Accordingly, the Sub-Divisional Engineer, Zoo Road Electrical Division submitted details safety report to the District Magistrate, Kamrup (M) informing that after visit of the place, they concluded that high tension line that passes over foot bridge has sufficient clearance and that the respondent school has shifted the 11 KV high tension line with bare conductor to 11 KV MVCC and LT bare conductor line to AB cable with Steel Tubular-80 pole vide Estimate No. CEO/GEC-I/TECH-25(E)/2019-20/2222 (A) dated 27.09.2021.

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In the aforesaid backdrop of facts, it is the considered opinion of this

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court that when the competent authorities like the GMC, the Electricity Authority, as well as the most competent authority in this regard i.e. the District Management Authority, after due consideration, had granted the permission, the petitioner should not have any further apprehension in this regard inasmuch as this court cannot endeavour to deal with apprehended disaster, in exercise of its power of judicial review.

¶38

At this stage, Mr. Jha, learned counsel for the petitioners further expresses his apprehension that the school authority may not construct the foot bridge as per the NOC granted to them and in such event there is every possibility of disaster.

¶39

This court has already recorded that the PWD, Road has in their NOC clarified that the construction is to be made in strict adherence of the conditions enumerated in NOC granted as well as they reserve their right to cancel such NOC in the event such conditions are not fulfilled and also in the future event of any traffic mismanagement, public harassment etc. Therefore, the petitioners should not have any apprehension inasmuch as the petitioners shall always be at liberty to approach the competent authority, if such construction is not carried out as per the NOC.

¶40

In view of the aforesaid, the present writ petition stands closed. Interim order passed earlier stands vacated.

¶41

However, while parting with the record it is made clear that this court has not commented on the merit of such NOC and the order of the District Magistrate passed under the Disaster Management Act, 2005.

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JUDGE

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Comparing Assistant

Procedural history

How this case reached the court

AI extract

Order under challenge
Order dated 11.09.2024 of the District Magistrate, Kamrup (M), acting as District Disaster Management Authority, directing the Sub-Divisional Engineer, Zoo Road Electrical Sub-Division to ascertain the issue of the high tension line passing over the road and to submit a No Objection Certificate — the administrative action central to the permitted foot-over-bridge construction around which the petitioners' challenge revolved.¶22
District Magistrate, Kamrup (M) (District Disaster Management Authority) · 11.09.2024
Prior proceeding
Respondent No. 7 (Gurukul Educational Trust) filed an application on 28.12.2020 seeking no objection for construction of a foot over bridge on the PWD road connecting the two campuses of Gurukul Senior Secondary School.¶27
Prior proceeding
Chief Engineer, PWD (Roads), Assam granted NOC to respondent No. 7 on 17.04.2021 with eight conditions, construction subject to strict adherence, and reserved the right to cancel the NOC for breach of any of the enumerated conditions.¶27
Prior proceeding
Respondent No. 7 sought approval from the Chief Executive Officer, GMDA; by communication dated 08.09.2022 the CEO, GMDA intimated that as the construction is proposed over a right of way (ROW), the competent authority for issuing the NOC is the Public Works Department.¶28
Prior proceeding
PWD issued a further NOC on 05.07.2023 with modification of the terms and conditions, extending PWD Road's right of cancellation beyond violation of conditions to the interest of safe condition of road and safety of pedestrian and vehicular traffic; the proposed drawing was approved by the Additional Director of Design, office of the Chief Engineer, PWD Road.¶32
Prior proceeding
The Disaster Management Authority accorded permission on 19.08.2024 to respondent No. 7 to go ahead with the construction of the foot over bridge, subject to adherence to all norms mentioned in the NOC received from the competent authority.¶33
Prior proceeding
To resolve the electrical-safety dispute, the District Magistrate sought an NOC from the Sub-Divisional Engineer, Zoo Road Electrical Sub-Division; the SDE's detailed safety report concluded that the high tension line passing over the foot bridge has sufficient clearance, noting the respondent school had shifted the 11 KV high tension line with bare conductor to 11 KV MVCC and LT bare conductor line to AB cable with Steel Tubular-80 pole vide Estimate No. CEO/GEC-I/TECH-25(E)/2019-20/2222 (A) dated 27.09.2021.¶34
Prior proceeding
An interlocutory application (I.A.) was filed in the pending writ petition; respondent No. 7 brought on record certain documents contending that all required permissions had been obtained.¶25
Prior proceeding
At the hearing, instead of taking up the I.A., the entire writ petition was taken up for final consideration, the I.A. being treated as pleadings at the submission of Mr. K N Choudhury, learned Senior counsel.¶21

Diganta Choudhury and Anr. v. the State of Assam and 9 Ors.

Case brief

What is this about?

What did the court decide?

Diganta Choudhury and Anr. v. the State of Assam and 9 Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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