Roushanara Begum Sadoil Vs the State of Assam and 4 Ors.

Heard Mr. H. R. A. Choudhury, learned Senior Counsel assisted by Mr. M. A. Choudhury, learned counsel for the petitioner. Also heard Mr. N. Das, learned State counsel representing the respondent Nos. 1, 2 and 3, Mr. S. P. Choudhury, learned counsel for the respondent Nos. 4 and 5 and Mr. I. Alom, learned counsel for the respondent No. 6.

¶26

The Chairman of the Silchar Development Authority, on 04.05.2021 issued a notice to the petitioner under Section 30(A) of the Assam Town & Country Planning Act, 1959 to stop and discontinue construction work made by the petitioner at Dag No. 8884, 8883 and 8882 under the 2^nd re-survey of MouzaSilchar Town, Silchar.

¶27

The petitioner filed a reply on 17.08.2021, inter alia taking a stand that she is not doing any construction or renovation of her house or Godown except minor repairing of the slab for smooth passing of the rain water. Thereafter, the respondent Silchar Development Authority being not satisfied with her reply, on the basis of the complaint of the impleaded respondent No. 6, the Silchar Development Authority visited the construction site and accordingly, passed the

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impugned order No. SDA-VIO/ENF/2020-2021/03/14 dated 08.10.2021. The said communication is stated to be a notice under Section 30(B) of the Assam Town & Country Planning Act, 1959 and therefore, directing the petitioner to remove/demolish the illegal construction at her own cost within 15 days of receipt of the said notice with an observation that failure on her part to do the same, the authority shall remove/demolish the same for which the cost is to be paid by the petitioner to the Silchar Development Authority. Being aggrieved, the present writ petition is filed.

¶30

Section 30(A) of the Assam Town & Country Planning Act, 1959, empowers the authorities to pass an order to any development to be discontinued when such development has been comments in contravention of master plan or development scheme or without the permission, approval or sanction referred to in Section 29 of the Assam Town & Country Planning Act, 1959 or in contravention of any condition subject to which such permission, approval or sanction has been granted by the authority.

¶31

Section 29 of the Assam Town & Country Planning Act, 1959, empowers that the authority may either grant or refuse the approval to the plans or with a power to modification as it deem fit.

¶32

Section 30B of the Assam Town & Country Planning Act, 1959 empowers the authorities to demolish building where any development has been commenced or is being carried on or has been completed in contravention of the Master Plan or development scheme or without the permission, approval or sanction referred to in Section 20 of this Act or in contravention of any conditions subject to which such permission, approval or sanction has been granted.

¶33

Now coming to the case in hand, the order issued on 04.05.2021 in purported exercise of power under Section 30(A) of the Assam Town & Country Planning

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Act, 1959, though alleges that the petitioner is undertaking construction in contravention of Master Plan of Silchar, Zoning Regulations 2000 & Assam Notified Urban Areas (other than Guwahati) Building Rules, 2014, without maintaining the approve building permission of the authority. However, the aforesaid order nowhere discloses whether such contravention is against which provisions of Master Plan or development scheme or whether such construction has been carried out without permission, approval or sanction, though it is state that “without maintaining approval”.

¶36

In the aforesaid backdrop and on the basis of such vague notice, it cannot be accepted that a person will be able to effectively reply to such a notice.

¶37

Beyond that, the petitioner filed a representation, where as recorded hereinabove, a specific stand was taken that she has not carried out any construction or renovation except minor repairing of the slab for smooth passing of the rain water. However, while issuing the communication dated 08.10.2021, the action is sought to be taken under Section 30(B) of the Assam Town & Country Planning Act, 1959, primarily on the ground that the petitioner has failed to show any construction permission to the field staff whereas, in the notice under Section 30(A) of the Assam Town & Country Planning Act, 1959, there is no specific allegation that the construction is carried out without permission. There is also no finding on the plea raised by the petitioner that she has not carried out any construction except minor repairing inasmuch as such a finding is required for the reason that the petitioner in her reply had specifically took a stand that no construction is carried out. Yet another aspect is that, admittedly there was a site visit, however, neither a copy of the findings on such report is given to the petitioner nor the findings of the enquiry is reflected in the impugned order. Thus, the impugned order was not based on reason. That being the position, a citizen cannot be expected to file a proper and effective reply in

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absence of what is the specific allegation. Thus, the same will amount to violations of principles of natural justice resulting in civil consequences.

¶40

At this stage, Mr. S. P. Choudhury, learned counsel for the respondent Nos. 4 and 5 submits that the authorities may be allowed to issue proper and fresh notices upon the petitioner detailing the alleged violations and thereafter, they may be allowed to decide the matter afresh, after giving due opportunity of hearing to the petitioner as well as the respondent No. 6, on whose behest the proceeding was initiated.

¶41

In view of the aforesaid and for the reason recorded hereinabove, the impugned orders dated 04.05.2021 and 08.10.2021, are interfered with and stands set aside.

¶42

The respondent Silchar Development Authority shall be at liberty to proceed against the petitioner as per law by giving due opportunity of hearing to the petitioner.

¶43

It is needless to say that if any action is taken on the basis of any complaint of the respondent No. 6, the respondent No. 6 also be given an opportunity of hearing.

¶44

Accordingly, this writ petition stands disposed of. Parties to bear their own cost.

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JUDGE

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Comparing Assistant

Roushanara Begum Sadoil v. the State of Assam and 4 Ors.

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Roushanara Begum Sadoil v. the State of Assam and 4 Ors.

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