Uttam Ghosh Vs the State of Assam and 6 Ors.

Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Ms. G Hazarika, learned counsel for the respondent No.1, Ms. M Bhattacharjee, learned counsel for respondent Nos.2 to 4 and Mr. B J Mukherjee, learned counsel representing the Bongaigaon Municipal Board appearing for respondent Nos.5 to 7.

¶25

It is the case of the petitioner that notwithstanding the order dated 08.09.2015, passed by this court in WP(C) No.722/2009 and despite the claim made by the petitioner seeking right over the land in question, the respondents Municipal Authorities tried to evict the petitioner and attempted to raise permanent construction over the land, though the Bongaigaon Municipal authority does not have any legitimate claim over the plot of land in question.

¶26

It is also submitted by Mr. Mahmud, learned counsel for

¶27

Page No.# 3/4

¶28

the petitioner that there is already a decree dated 07.01.1991 passed in Title Suit No.38/1989 in his favour relating to the land.

¶29

The Bongaigaon Municipal authority has filed an affidavit, wherein their stand is that a notice under section 171 of the Assam Municipal Act, 1956 was issued to the petitioner asking the petitioner to dismantle a structure which has been constructed violating the norms approved in the permission drawing granted by the Municipal Authorities and thereby violated the provisions of Section 171 of the Municipal Act, 1956.

¶30

Mr. Mukherjee, learned counsel in his usual fairness contends that though the aforesaid notice under section 171 of the Assam Municipal Act was issued, however, no opportunity of hearing was granted to the petitioner and the Municipal authority is willing to give a notice to the petitioner to place his case as regards the illegal construction and after hearing him, the municipal authority will pass appropriate orders in this regard.

¶31

So far relating to the decree, the Municipal authority has taken a stand that they are not at all interested in the land, which belongs to the petitioner, under the decree of the court.

¶32

It is their further stand that the Municipal authority is having a contiguous plot of land which is meant for construction of a market and for the order of status quo passed they are not being able to proceed with any construction of the aforesaid market.

¶33

That being the position, this court is of the view that the petitioner should not have any apprehension as regards his eviction at the hands of the municipal authority from his plot of land,

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¶35

inasmuch as this court cannot ignore the fact that the Municipal authority shall have a right to issue show cause notice and to dismantle construction which are beyond permission or which are in violation of the prescription made under the Municipal Act, 1956 and bylaws made in this regards including Assam Notified Urban Areas (Other than Guwahati), Building Rules, 2014.

¶36

In the totality of the matter, including the stand of Municipal authority and also the stand of Mr. BJ Mukherjee, learned counsel for the private respondents that a fresh notice would be issued, the present writ petition stands closed by setting aside the impugned notice dated 14.12.2020 (Annexure C to the affidavit in opposition) with a liberty to the Municipal Corporation to proceed in accordance with law against the petitioner afresh, if they are of the opinion that the petitioner has violated any of the provisions of the Municipal Act or the rules and by laws framed therein by constructing houses, etc. However, it is also made clear that the Municipal authority, even if there is a boundary disputes between the petitioner and the land of the Municipal authority, will not be within its jurisdiction to evict the petitioner under the Municipal Act, 1956, though, they shall always have the liberty to approach appropriate forum.

¶37

With the aforesaid observations, the writ petition stands closed.

¶38

Interim order passed earlier stands vacated.

¶39

JUDGE

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Comparing Assistant

Uttam Ghosh v. the State of Assam and 6 Ors.

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Uttam Ghosh v. the State of Assam and 6 Ors.

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