Malay Saha vs Agartala Municipal Corporation And Ors.

Heard Mr. S. Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. K.K. Pal, learned standing counsel appearing for the Agartala Municipal Corporation.

This writ petition has a chequered history. Earlier also, the petitioner has approached this court on the same controversy and the said writ petition was registered as WP(C) No. 123 of 2016. Again, the petitioner on the face of the notice dated 13.01.2017 [Annexure-30 to the writ petition] and the notice dated 06.02.2017 [Annexure-32 to the writ petition] has approached this court framing almost similar relief as he framed in the previous writ petition.

There is no dispute that the petitioner had started constructing his building on the holding No.352-C, house No.191623, ward No.19 after taking the due sanction from Agartala Municipal Council vide the permission dated 17.05.2015 [Annexure-1 to the writ petition]. Thereafter, one complaint was filed against the petitioner that the petitioner without having any building plan had started the construction. But later on, on inquiry it was found that there were some deviations from the said sanctioned plan and accordingly, the Agartala Municipal Corporation through the Executive Officer, East Zone issued the order dated 22.01.2015 directing the petitioner to demolish or remove the unauthorised part of the construction. The petitioner had carried out an appeal under Section 133(3) of the Tripura Municipal Act, 1994 against the said order dated 22.01.2015. After hearing, the said appeal was disposed of by remitting the matter to the Executive Officer, East Zone, Agartala for revisiting the order again after affording opportunity to the petitioner. The said officer, Assistant Municipal Commissioner [formerly the Executive Officer], East Zone, Agartala Municipal Corporation by the order dated 31.08.2016 had observed as under :

"In this connection a report is also available from the team formed by Executive Engineer planning division, AMC.

In case of South side construction of Sri Malay Saha there is deviation but there is no complain against the construction because Sri Maly Saha has boundary with Sri Rajib Roy, S/O Sri Hiralal Roy & thereis no problem with the construction at South side of Sri Malay Saha stated by Sri Rajib Roy S/O Sri Hiralal Roy himself.

And in west side of Sri Malay Saha S/O Late Gagan Ch. Saha the younger sister (Smt. Mita Roy, W/O Sri Dwijendra Lal Roy) of Sri Malay Saha is the neighbour and she does not have any problem with the construction at the west side as mentioned by Sri Rajib Roy representative of Sri Maloy Saha.

In this connection a written statement is also available from Smt. Mita Roy, W/O Sri Dwijendra Lal Roy submitted by Rajib Roy.

Hence the case has been dropped."

So the objection proceeding was dropped by the said order and the petitioner recommenced his construction work.

Again on the basis of a complaint filed by one Sri Uttam Kumar Das, notice was issued to the petitioner on 06.10.2016 directing the petitioner to appear before the Assistant Municipal Commissioner, East Zone, Agartala Municipal Corporation. By the said notice, the petitioner was again alleged of commencing construction without approved site plan from the local body or in deviation thereof. Against the said notice, another appeal was filed before the appellate authority. By the order dated 02.12.2016, the appellate authority had observed as under :

"This case has a long history which started on 17.05.2014, when appellant was given permission to construct a building. Subsequently, a notice was issued by Assistant Municipal Commissioner on 22.10.2014 stating that he had constructed his building in violation of the sanctioned plan. It appears from the record that the said notice was a follow up of a complaint made by one Sri Uttam Kumar Das. Subsequently, an order for demolition was passed which was appealed in the Appellate Tribunal which remanded the case back for fresh enquiry and order. Again order for demolition was passed by Executive Officer, East Zone, Agartala. Against the said order, the appellant went in the High Court which further directed Executive Officer, East Zone, AMC vide its order dated 25.02.2016 to re-examine the case and pass fresh order considering deviation, is if not substantial in nature, can be waived by way of taking other punitive measures.

In compliance of the said order, Executive Officer, East Zone, AMC passed the order on 31.08.2016 accepting the position and allowing the construction done by him.

Suddenly Executive Officer, East Zone (now Assistant Commissioner), AMC issued a show cause notice to the appellant on 06.10.2016 asking him to stop construction. This notice was issued on the complaint of the said Sri Uttam Kumar Das who appears to be an influential person. No satisfactory answer could be given by Executive Officer why he put a stay on construction merely on the complaint of the person, who has complained earlier also against the appellant and without verifying the facts of the ground. No preliminary inquiry was got conducted to ascertain if the complaint was having some merit before issue of interim stay order. This becomes very serious when it is seen that barely two months earlier, appellant was cleared of all charges levelled against him by the same officer. This clearly shows non-application of mind by the Executive Officer, East Zone."

On that foundation of observation, the appellate tribunal had observed in the said order dated 02.12.2016 as follows :

"Considering relevant facts in this case, appeal is allowed and notice dated 06.10.2016 is set aside. Municipal Commissioner, Agartala Municipal Corporation is advised to examine all the facts of the case in the light of order of the Hon'ble High Court passed on 25.02.2016 and pass a speaking order after verifying the facts on the ground."

It can be noticed that the Municipal Appellate Tribunal has observed with emphasis that the complainant appeared to be an influential person. Even why the construction was put on hold could not be answered by the Assistant Municipal Commissioner and there was no verification of the facts for purpose of issuing the notice. Even thereafter, having influenced by the said complainant namely Sri Uttam Kumar Das, another notice had been issued on 30.01.2017 [Annexure-30 to the writ petition] on the self-same allegation.

A municipal team comprising of some technical officers was formed by the memorandum dated 03.02.2017. Before the team could complete their inquiry, another complaint was filed by another person against the same construction and a further notice dated 06.02.2017 [Annexure-32 to the writ petition] was issued to the petitioner. The petitioner raised the protest against such diabolical tactic to cause harm and loss to the petitioner.

Having received the notice from this court, the Agartala Municipal Corporation has filed their reply and they have raised no dispute regarding the factual aspects of the matter as narrated above.

Further, it has been asserted in the said reply that immediately on receipt of the complaint, an inquiry was made by a team headed by Assistant Engineer, Planning Division, AMC. The said team found the side space of building kept by the petitioner is not in conformity with the building plan and projection of staircase landing has been constructed beyond the approved plan. The said inspection report has been annexed.

On query of this court, Mr. K.K. Pal, learned counsel appearing for the respondents has fairly submitted that so far the deviation is concerned, it is under the Column-12 of the said report. The deviation as found on execution is as under :

"1.31 mm x 0.60 mm stair case landing projection."

Mr. Pal, learned counsel has further submitted that the projection is permissible up to 0.50 mm in terms of Rule 49(1)(a) and Rule 97(1)(a) of the Tripura Buildings Rules, 2004. There is deviation of .10 mm and that has become the bone of contention. A layman even can understand that no construction can be perfectly fitted into the plan. There may be some slight deviation here and there. If these are not major and deliberately purposed deviation, those deviations during execution are condonable equitiously. .102 mm extension in the projection is such a negligible deviation, no notice ought to have been issued by the Municipal Corporation. Moreover, it is apparent from the finding of the Municipal Appellate Tribunal that the influential persons are exerting their acquaintance for intervening in the construction of the petitioner.

Having observed thus, the notices as challenged in this writ petition are set aside. The petitioner shall be permitted to continue with the construction and if there is any outer limit of completing the construction in view of the obstruction as provided, the Municipal Corporation shall extend the time for execution of the work proportionately. However, the petitioner shall strictly follow the sanctioned plan and must be vigilant that no further deviation is observed on inspection by Agartala Municipal Corporation.

In terms thereof, this writ petition is allowed. There shall be no order as to costs.

A copy of this order be furnished to Mr. K.K. Pal, learned standing counsel appearing for the Agartala Municipal Corporation.