Gautam Lahkar & Ors. vs The Guwahati Metropolitan Development Authority & Ors.

Heard Mr. T.J. Mahanta, the learned Senior Counsel assisted by Mr. D.P. Mandal, the learned counsel appearing on behalf of the Petitioners in WP(C) No. 4389/2020. Mr. P. Nayak, the learned Additional Advocate General, Assam appears on behalf of the Respondent Nos. 1 to 4 and Ms. U. Das, the learned Additional Senior Government Advocate appears on behalf of Respondent Nos. 5 and 6. Mr. D. Das, the learned Senior Counsel assisted by Mr. I. Bhuiyan, the learned counsel appears on behalf of the Respondent Nos. 7 and 8. Mr. B.M. Chetry, the learned counsel appears on behalf of the Respondent No. 9 and Mrs. M. Hazarika and Mr. R.B. Phookan, the learned Senior Counsels assisted by Ms. D. Das, the learned counsel appear on behalf of the Respondent No. 10 in WP(C) No. 4389/2020, who is the Petitioner in WP(C) No. 240/2024. I have also heard Mr. K.J. Hazarika, the learned counsel appearing on behalf of the Petitioners in WP(C) No. 7008/2023. The Respondent GDD, GMDA and GMC in both WP(C) No. 7008/2023 and WP(C) No. 240/2024 are represented by Mr. P. Nayak, the learned Additional Advocate General, Assam.

The three writ petitions being interconnected are taken up for disposal by this common judgment and order.

For the sake of convenience, the parties are referred to as per their status in WP(C) No. 4389/2020. However, as the Petitioners in WP(C) No. 7008/2023 are not parties to WP(C) No. 4389/2020, they would be referred to as per their status in WP(C) No. 7008/2023.

The grievance for which the three writ petitions have been filed by their respective Petitioners can be discerned from a brief narration of the facts.

The Respondent No. 9 along with one Sri Praveswar Rabha were the owners of three plots of land.

The first plot admeasuring 1 Bigha 1 Katha 2 Lechas covered by Dag Nos. 343, 344, 346, 347, 499 and 507 and included in Patta Nos. 17, 29, 87, 46 and 86 of village Jatia under Beltola Mouza in the district of Kamrup, Assam. On the said land, there exists an RCC Building. This plot of land is hereinafter for the sake of convenience referred to as “Plot-A”.

The second plot of land admeasures 2 Kathas 14 Lechas covered by Dag No. 342 of Patta No. 87 of village Jatia under Beltola Mouza in the district of Kamrup, Assam. This plot of land is hereinafter for the sake of convenience referred to as “Plot-B”.

The third plot of land admeasures 2 Kathas 16 Lechas covered by Dag No. 344 of Patta No. 104 of village Jatia under Beltola Mouza. This plot of land is hereinafter for the sake of convenience referred to as “Plot-C”.

The Respondent No. 9 along with Sri Praveswar Rabha entered into an Agreement dated 06.05.2006 with a proprietorship firm namely M/s Ottis Infrastructure owned by the Respondent No. 10 for construction of multi-storied buildings comprising self-contained independent residential flats with dwelling units. The multi-storied building was to be named “Nirupama Niwas”. In terms with the said Agreement, Plot-A was described as Schedule A to the Agreement and Plot-B and Plot-C were conjointly described as Schedule B.

In terms with the said Agreement, the Respondent No. 10 was required to provide the Respondent No. 9 and Sri Praveswar Rabha 25% of the super built-up area of Schedule B and the whole construction area over Schedule A including proportionate car parking space in the said building together with right, title and interest in common amenities including the right to use thereof, upon construction of the said building. It was further mentioned in the said Agreement that the proposed building to be constructed over the Schedule A land would be named Block C and the proposed buildings to be constructed on the Schedule B land would be Block A and Block B.

The understanding of the Agreement dated 06.05.2006 is relevant for appreciating the dispute involved in the present proceedings.

Subsequently, a Deed of Rectification was entered into in June, 2008 whereby the Registered Agreement dated 06.05.2006 was modified in terms with the modification, the Schedule A and Schedule B lands described in the Original Agreement was substituted. In terms with the rectified Agreement, both Schedule A and Schedule B were omitted and one single schedule was mentioned thereby clubbing there three plots of land, i.e., Plot A, Plot B and Plot C together.

Be that as it may, prior to the rectification of the Deed of Agreement dated 06.05.2006, permission was obtained by the Respondent No. 10 on 06.11.2007. In terms with the said permission granted by the GMDA, three multi-storied buildings were permitted to be constructed. Two multi-storied buildings, (hereinafter referred to as, “Block A and Block B”) were permitted to be constructed of ground + six floors and the third multi-storied building (hereinafter referred to as, “Block C”) permission was granted for ground + four floors.

The Petitioner Nos. 1 and 2 are purchasers of flats by various Deeds of Sale dated 01.08.2017 and the Petitioner No. 3 purchased the flat on 18.12.2019. The Petitioner No. 1 purchased the flat in Block B, whereas the Sale Deeds in the case of the Petitioner Nos. 2 and 3 are over the plot of land described hereinabove as Plot-B.

In the backdrop of the above, let this Court now consider the grievance of the Petitioners in WP(C) No. 4389/2020, WP(C) No. 7008/2023 and WP(C) No. 240/2024.

The grievance of the Petitioners in WP(C) No. 4389/2020 is th that the Respondent No. 7 constructed the 7 floor over Block A by blocking the ingress and egress to the terrace of the building and the area allotted for individual overhead water tanks. The said th addition of the 7 floor by the Respondent No. 7 was a non-compoundable offence and was in utter violation of Appendix- III of the Building Bye-laws, 2006. It was the further grievance of the Petitioners that the Respondent No. 8 changed the use of Block C from residential to commercial which is a non-compoundable offence and in utter violation of Appendix-III of the Building Bye-laws, 2006. It was alleged that the owner of the Respondent No. 8 changed the use of the entire Block C consisting of four floors to commercial use and is presently running a hotel in the name and style of “N.K. Hotel”. It was also alleged that both the GMDA and the GMC were at fault, first by allowing illegal construction of the th 7 floor over Block A and further by allowing commercial activities from a residential building, i.e., Block C and also issuing a trade licence to run the hotel in the name and style of “N.K. Hotel”.

The representations were submitted by the Petitioners to the GMC as well as the GMDA. However, as no steps were taken, the writ petition was filed seeking directions upon the Respondent Nos. th 1 and 2 to demolish the 7 floor of Block A and the entire Block C; to seal the N.K. Hotel, which is running illegally from a residential building, i.e., Block C; and to set aside and quash the trade licence of N.K. Hotel.

Upon filing of the writ petition, the learned Coordinate Bench of this Court vide an order dated 21.10.2020 issued notice and directed the Respondent Nos. 1 and 3 to conduct an enquiry into the matter and thereafter submit independent reports before the Court.

The Respondent No. 4 submitted an enquiry report stating inter alia that Block A and Block B are in one premises and Block C is in another premises. Both the premises are separated by a boundary wall. The approach to the premises of Block A and B are different from that of premises of Block C. It was further mentioned that the Respondent No. 8 is carrying on a hotel th business from the ground floor to the 4 floor of Block C. It is also mentioned that though an earlier proposal for the NOC was for a st nd rd hotel (lodging and fooding) on the 1 , 2 and 3 floors and a th dining hall on the 4 floor with parking at the ground floor at Block C at Jatia. It was further mentioned that upon inspection of the trade premises, it was found that a part of the ground floor had been partially used for parking-cum-reception-cum-office and th lodging on the 4 floor, in addition to dining/restaurant. An application was received on 10.11.2020 requesting permission for th extension of the said hotel up to the 4 floor. A conditional NOC was granted to the Respondent No. 8 on the basis of an affidavit submitted by the Respondent No. 8 affirming conversion of the building permission from residential apartment to commercial building. In the property tax payment and assessment, the type of property was mentioned as commercial. It was further mentioned that the Respondent No. 8 had submitted an application for issuance of a trade licence vide application dated 28.10.2020, which had not been considered due to non-availability of documents of conversion and occupancy certificate.

It is relevant to take note of that along with the enquiry report, a No Objection Certificate issued by the Joint Commissioner of Guwahati Municipal Corporation dated 26.06.2020 was submitted permitting the trade of hotel (Lodging and Fooding) on st nd rd the 1 , 2 and 3 floors in the name and style of M/s N.K. Hotel, subject to observance of the terms and conditions.

The records further reveal that the Respondent No. 8 had filed an affidavit-in-opposition stating inter alia that though Block C was to be used for residential purposes in terms of the NOC dated 06.11.2007, subsequently, the Joint Commissioner of Guwahati Municipal Corporation issued another No Objection Certificate dated 26.06.2020 stating inter alia that the Guwahati Municipal Corporation had no objection to allowing the trade of hotel st nd rd (Lodging and Fooding) on the 1 , 2 and 3 floors in the name and style of M/s N.K. Hotel, proprietor Nityaranjan Borkotoky at Kahilipara Road, Faguna Rava Path, Jatia under Municipal Ward No. 26, GMC Holding No. 12253870.

It was further mentioned in the said affidavit-in-opposition filed by the Respondent No. 8 that M/s N.K. Hotel was under a lease obtained for a period of 15 years from the landowner, i.e., the Respondent No. 9 and though the name of the establishment is M/s N.K. Hotel, the establishment is in fact was a Motel inasmuch as all facilities and amenities required for running a hotel are not available. It was further mentioned that the total built-up area of all the blocks amounts to 5,924.61 m² and the total built-up area of Block A and Block B (residential use) amounts to 4,256.34 m², while the total built-up area of Block C (commercial use) amounts to 1,668.27 m². It is further stated that the total built-up area of Block C, which is currently used for commercial purposes, amounts to less than one-third of the total built-up area of all the blocks and as such, the use of Block C for commercial purposes is in due compliance with Byelaw 2(28) of the Guwahati Building Construction (Regulation) Byelaws, 2014, which stipulates that a mixed-use building means a building having more than one use where the predominant use is not less than two-thirds of the total use and the predominant use to be in conformity with the zoning. The Respondent No. 8 has also enclosed the assessment of the ground + four storied building which is being used as M/s N.K. Hotel, and assessed by the GMC as commercial building.

The Respondent No. 9 has also filed an affidavit-in-opposition wherein an interesting aspect has been brought to light. It was mentioned that though the Respondent No. 10 was to construct Block A, Block B and Block C in terms with the Deed of Agreement dated 06.05.2006, the Respondent No. 10, owing to financial difficulties, entered into a Memorandum of Understanding on 03.07.2015, whereby the Respondent No. 10 would construct only Block A and Block B and Block C would be constructed by the Respondent No. 9 and her husband wherein the Respondent No. 10 would have no right whatsoever. Block C was thereupon constructed by the husband of the Respondent No. 9 during his lifetime and upon construction, an application was filed by the husband of the Respondent No. 9 to change the use of Block C from residential to commercial use. For that purpose, necessary formalities were carried out, but unfortunately, before the conversion could take place, the husband of the Respondent No. 9 expired. The Respondent No. 9 thereupon since 03.01.2020, started paying property tax as commercial building to GMC which was assessed and collected. The Respondent No. 9 further mentioned that Block C had been used for commercial purposes since the year 2019, wherein a Motel in the name of M/s N.K. Hotel was being run by the Respondent No. 8. It was further mentioned that there is no violation of the NOC dated 06.11.2007 by the conversion inasmuch as Block C has been converted to commercial use after following the due procedure of law and paying the requisite taxes applicable to a commercial establishment.

An additional affidavit was filed by the Respondent No. 8 on 23.02.2022 whereby the trade licence issued to the Respondent No. 7 for carrying on the business of a hotel having 16 to 30 beds (air-conditioned establishment) in the name and style of N.K. Hotel was enclosed.

At this stage, it is relevant to take note of an order passed by the learned Coordinate Bench of this Court dated 28.09.2022 wherein on the basis of a site inspection report dated 17.11.2020 enclosed to the affidavit filed by the Respondent No. 2, the learned Coordinate Bench of this Court directed the GMDA to take appropriate action strictly in terms of the site inspection report within a period of one month and report compliance to the Court. The writ petition was thereupon fixed on 07.11.2022.

On the date so fixed, when it was brought to the attention of this Court that in spite of the order dated 28.09.2022, the GMDA authorities had not taken any steps, the Chief Executive Officer, GMDA was directed to appear before the Court on 09.11.2022 personally. Thereupon, when the matter was listed on 09.11.2022 and the Chief Executive Officer of the GMDA appeared, this Court directed the GMDA authorities to forthwith issue notice to the Respondent No. 7 on account of the violation as regards the use of the building and pending any such decision being taken by the authorities concerned, the hotel being run by the Respondent No. 7 be sealed with immediate effect. Further, as regards the violation of the approved plan as well as the building permission pertaining th to Block A, where construction had been made on the 7 floor, the Respondent GMDA was further directed to issue notice to the Respondent No. 10, the builder of the building in question and the society in question and on the basis of the said replies, if any, thereupon decision be taken in terms with the provisions of the GMDA Act as well as the Byelaws framed thereunder. This Court further directed the writ petition to be listed on 16.11.2022 and the Chief Executive Officer of the GMDA was directed to file a report ensuring compliance to the directions passed by this Court.

Pursuant thereto, it was reported before this Court when the writ petition was taken up on 16.11.2022 that the hotel being N.K. Hotel was sealed on 11.11.2022 at 3:00 PM. An Interlocutory Application was filed in the writ proceedings by the Respondent No. 7 stating inter alia that the seal be removed so that the premises being Block C could be used for residential purposes on account of his son's marriage. This Court, vide an order dated 18.11.2022 passed certain interim directions directed desealing of the building, i.e., Block C on an undertaking given before this Court that the same would be used only for residential purposes. The trade licences issued to the Respondent Nos. 7 and 8 were also suspended until further orders.

The above facts would be sufficient for the purpose of deciding WP(C) No. 4389/2020.

Nine Petitioners have joined together to file the present writ petition being aggrieved by the issuance of a show cause notice dated 19.11.2022 to the Respondent Nos. 7, 9 and 10 in WP(C) No. 4389/2020 as well as to the President/Secretary of the Nirupama Niwas Welfare Society whereby replies were sought from the noticees as to why the unauthorized building construction should not be demolished. The unauthorized constructions so referred to th was the construction of the 7 floor with Assam-type roof structure in Block A and the unauthorized subdivision of the plot by constructing a brick wall between Block C and the other two blocks, i.e., Blocks A and B. Further, in the said show cause notice dated 19.11.2022, it was mentioned that the letter issued to the Respondent No. 10 and his son by the GMDA authorities in connection with the occupancy certificate proposal was also cancelled.

The Petitioners herein claim that they are bona fide purchasers of the flats and on account of illegal construction being carried out by the Respondent Nos. 7 and 10 in WP(C) No. 4389/2020 as well as the erection of the boundary wall thereby dividing Block A and B from Block C, their right to obtain the occupancy certificate should not be affected.

This Court had issued notice and in spite of notice being issued, none of the Respondents have filed their affidavits.

The third writ petition was filed by the Respondent No. 10 in WP(C) No. 4389/2020 assailing the showcause notice dated 19.11.2022 as well as the communication dated 14.12.2022 whereby the Chief Executive Officer, GMDA, had directed the Respondent No. 10 to furnish a revised occupancy certificate proposal on the basis of the revised plot area and revise the existing access from the secondary road based on the applicable norms. In addition to that, the Respondent No. 9 was directed to furnish a proposal for regularization of the existing ground plus two and Block C in pursuance to the order passed by this Court in WP(C) No. 4389/2020.

In the said writ petition, another document has been enclosed which is a document issued by the Chief Executive Officer of the Guwahati Metropolitan Development Authority to the Respondent No. 10 in WP(C) No. 4389/2020 informing that as Block C was constructed by the landowner, the landowner can only apply for the occupancy certificate. It was also mentioned that the original plot as per the NOC was divided into two distinct and separate plots with independent plot areas and access and as such, both the proposals are to be regularized as per the provisions of the applicable Byelaws.

This Court has heard the learned counsels appearing on behalf of the parties and has duly perused the materials on record.

From the narration of the facts, it is seen that initially the Respondent No. 9 and her husband had entered into an agreement with the Respondent No. 10 for construction of three multi-storied buildings of which one multi-storied building would be Block C which shall solely belong to the Respondent No. 9 and her husband. In respect to Block A and Block B, certain areas would be provided to the Respondent No. 9 and her husband.

Subsequently, there was a rectification of the Deed of Agreement dated 06.05.2006 in the month of June, 2008. Prior thereto, permission was granted for construction of the three blocks, i.e., Block A, Block B and Block C by the GMDA on 06.11.2007.

It is notable that prior to the Deeds of Sale executed by the Respondent No. 10 in favour of the Petitioners in WP(C) No. 4389/2020, there was a Memorandum of Understanding dated 03.07.2015 entered into by and between the Respondent No. 9 and her husband with the Respondent No. 10. This Memorandum of Understanding led to a novation of the original Agreement dated 06.05.2006 along with the Rectification Deed inasmuch as Block C would now be constructed by the Respondent No. 9 and her husband and the Respondent No. 10 would have no right over Block C.

The above aspect is relevant, to analyze the claim of the Petitioners in WP(C) No. 4389/2020 inasmuch as the Petitioners' rights accrued after the Agreement dated 06.05.2006 which rectified in June, 2008 and altered by the Memorandum of Understanding dated 03.07.2015. The natural corollary, therefore, is that the Respondent No. 10 could not have conferred any right upon the Petitioners insofar as the land upon which Block C as well as the two storied RCC building was constructed. Consequently, the question of granting the reliefs for demolition of Block C at the instance of the Petitioners do not arise. Moreover, it is also the stand of the Respondent GMDA, that the use of the Buildings, i.e., Block C can be regularized as would be apparent from the communication dated 14.12.2022 issued by the Chief Execution Officer, GMDA. Apart from that, Byelaw 18(6) of the Guwahati Building Construction (Regulation) Byelaws, 2014 permits filing of application for change of the use of the building.

Now let this Court take note of the claim of the Petitioners in th respect to the construction of the 7 floor in Block A. A perusal of the Deed of Sale of the Petitioner No. 1 would show that he has purchased the flat in Block B. The Deed of Sale nowhere mentions that he has any right over the terrace of Block A. Insofar as the Sale Deeds of the Petitioners Nos. 2 and 3 in WP(C) No. 4389/2020 are concerned, there is no mention that they have any right over the terrace or Block A. Therefore, the very basis on which the writ petition has been premised in respect to the challenge to the th construction of the 7 floor over Block A appears to be misconceived.

Be that as it may, this Court also cannot turn a blind eye to the fact that in Block A, the permissible construction in terms of the NOC dated 06.11.2007 was ground + six floors. Therefore, without there being permission, the Respondent No. 7 or the Respondent No. 10 could not have raised the construction of the th 7 floor. It is, however, of relevance to take note of the Appendix-III of the Guwahati Building Construction (Regulation) Byelaws, 2014 which stipulates what are compoundable items and what are non-compoundable items. It is of relevance to note addition of extra floor to accommodate area within the compoundable FAR is a compoundable item whereas additional floor beyond the compoundable FAR is a non-compoundable item.

It is relevant at this stage to take note of the submission of Mr. P. Nayak, the learned Additional Advocate General who submitted that if the wall separating Block C from Block A and Block B is removed then the entire building Blocks existing over the land area of 2 Bighas 1 Katha 4.6 Lechas can be regularized including the th structure forming part of the 7 floor in Block A. This submission was made on the basis of a report submitted by the Executive Engineer, Guwahati Metropolitan Development Authority, which is kept on record and marked with the letter “X”.

This Court finds it relevant to take note of the contents of the report. It is mentioned that the area of construction was 6,600.91 2 th m and the constructed area including the 7 floor was 5,848.48 2 m . Under such circumstances, in conformity with the Guwahati Building Construciton (Regulation) Byelaws, 2014, all existing blocks can be regularized considering the main road for entry to all the blocks without any partition of the plots as approved by the Authority. Be that as it may, it is the opinion of this Court that while permitting regularization of the additional floor there is a requirement of carrying out due inspection whether the building, th i.e., Block A would be safe with the additional weight of the 7 floor.

In view of the above, it is the opinion of this Court that the Respondent Authorities can be directed to consider the application th for regularization of the 7 floor in Block A, if the Respondent No. 7/Respondent No. 10 submits a proper application for regularization. The regularization can only be carried out, provided it is permissible as per the applicable building Byelaws and most importantly after carrying out inspection as to whether the th construction of the 7 floor would effect the building, i.e., Block A. It shall be the absolute responsibility of the authorities concerned to make such evaluation by carrying out verification through scientific methods.

This Court also takes note of the show cause notice dated 19.11.2022 which has been put to challenge in WP(C) No. 7008/2023 and WP(C) No. 240/2024.

The show cause notice is a fallout of the order dated 16.11.2022 passed by this Court. In the said show cause notice, the violations alleged therein are on two aspects. First, the division of the land between Block A and Block B with Block C and the th second is the construction of the 7 floor in Block A.

At this stage, it is also relevant to take note of that in pursuance to the order passed by this Court dated 13.08.2026, an affidavit was filed by the Respondent No. 9 thereby giving an undertaking to demolish the brick wall existing between Block C and Block A and Block B together.

During the course of the hearing today, it was informed that the said brick wall which was standing between Blocks C and A and Block B together had already been demolished. Under such circumstances, the show cause notice dated 19.11.2022 hinges th only on the aspect pertaining to the construction of the 7 floor in Block A.

However, for the purpose of regularization, an application would be required to be filed by the Respondent No. 7/Respondent No. 10 to which the learned Senior Counsels appearing on behalf of the Respondent No. 7/Respondent No. 10 have duly apprised this Court that the needful would be done.

Now, let this Court take up the issue pertaining to the non-granting of the occupancy certificate to the Petitioners in WP(C) No. 7008/2023. The wall standing between Block C and Block A and Block B together was one of the impediments in the issuance of the occupancy certificate. The said wall as on today stands demolished. Further, taking into account that the flat owners have invested huge amounts of money, they cannot be deprived of the occupancy certificate on account of the fault of the Respondent No. th 7/Respondent No. 10 in raising an additional floor above the 6 floor in Block A. Under such circumstances, it is therefore the opinion of this Court that the occupancy certificate in respect of Block A and Block B should be issued by the concerned authorities th barring the occupancy certificate in respect to the 7 floor of Block th A which can only be permissible if the 7 floor of Block A can be regularized.

Another aspect arises as regards the use of Block C inasmuch as the permission granted for construction of Block C was a residential permission by the GMDA. However, the GMC permitted commercial use vide the communication dated 26.06.2020 issued by the Joint Commissioner, GMC and further, Block C was assessed as a commercial building and due payments have been made to the GMC in that regard as a commercial building.

It is the opinion of this Court that the Respondent No. 9 has to apply before the Respondent Authorities for conversion of the use of Block C from residential to commercial use and if such conversion is permitted, then only the Respondent No. 9 or her tenants can use Block C for commercial use.

Accordingly, the instant writ petitions stand disposed of with the following observations and directions.

The Respondent No. 9 is granted liberty to apply for conversion of the use of Block C from residential to commercial. Till such conversion is permitted, the Block C building shall be used only for residential purposes.

Before parting with the record, this Court finds it relevant to observe that both the GMDA and GMC are statutory bodies. They have been conferred with powers to act if there is any violation of the GMC Act, 1971, GMDA Act, 1985 as well as the Rules and Byelaws framed therein under. It would be more appropriate for such statutory authorities to act if there is any violation within the confines of law. Failure to do had led to the present proceedings. Under such circumstances, before concluding this Court expects that the said two statutory authorities shall duly act if any violation is made to the Approved/Revised plans with the confines of law.