Ranju Agarwal vs State Of Assam And 10 Ors.

,,

Heard Mr. N. Dutta, learned senior counsel representing the petitioners assisted by Mr B. Dutta, Advocate. None to represent the State",,

Respondents who are impleaded as respondent nos. 1, 2, 3 and 4. Mr. D. Mozumdar, learned senior counsel represents respondent no. 5, assisted by",,

Mr. S. Biswas, Advocate. Respondent no. 7 is represented by Mr. K.N. Choudhury, learned senior counsel assisted by Mr. V.K. Singh, Advocate.",,

Mr. V.K. Singh also represents respondent nos. 8 and 9 whereas respondent no. 10 is represented by Mr. R. J. Baruah, Advocate. There is none to",,

represent respondent no. 11, though served.",,

Petitioners puts to challenge the Building Construction Permission dated 12.05.2014 and the subsequent Renewal Permission dated 05.02.2016,",,

issued under the hand of the Chairperson, Tinsukia Municipal Board in favour of Gayatri Devi Choudhury (died on 07.11.2015) primarily on grounds",,

that the same had been issued in violation of the provisions of the Assam Notified Urban Areas (Other than Guwahati) Building Rules, 2014 (in short",,

‘Building Rules, 2014’).",,

This Court has been called upon to decide on the locus standi of the petitioners in maintaining the present writ petition as well as to answer whether,,

the Building Rules, 2014 has any application in the facts and circumstances of the case. This Court is also called upon to decide whether even if the",,

Building Rules 2014 has any application to reinforce the challenge made by the petitioners, can any interference be made to the stage of the",,

construction of the Building as obtaining today.,,

Relevant dates which must be noticed for adjudication of this case are as follows:,,

07.02.2014: Application by Gayatri Devi Choudhury to Tinsukia Municipal Board for permission to construct G+4 storied building for,,

residential/commercial purposes with basement parking. 03.03.2014: Assam Gazette Notification bringing into force the Assam Notified Urban Areas,,

(Other than Guwahati) Building Rules, 2014. 11.04.2014: Date on which the processing of the application for permission is stated to have been",,

completed, according to Respondent No.5. 19.04.2014: Date on which the Tinsukia Municipal Board is stated to have received the 2014 Rules from",,

the Director, Town & Country Planning, Assam. 12.05.2014: No Objection Certificate of the Tinsukia Municipal Board permitting construction of",,

building in favour of Gayatri Devi Choudhury, valid for one year from date of issue. 07.11.2015: Demise of Gayatri Devi Choudhury. 05.02.2016:",,

Renewal Permission for construction of the building in favour of Gayatri Devi Choudhury, renewed up to 12.05.2018. 26.12.2017: Objections against",,

construction of the building, filed by petitioner no. 2, addressed to (i) the Chairman, Tinsukia Municipal Board, (ii) the Deputy Commissioner, Tinsukia.",,

08.01.2018: Letter of the District Development Commissioner, Tinsukia, Office of the Deputy Commissioner, Tinsukia, addressed to (i) the",,

Chairperson, Tinsukia Municipal Board, (ii) the Chairman, Tinsukia Development Authority, mentioning about the complaint petition and directing",,

taking of action to stop further construction work of the building. 09.01.2018: Notice issued from the Office of the Deputy Commissioner, Tinsukia to",,

(i) the Chairperson, Tinsukia Municipal Board, (ii) Sri Ram Prakash Agarwal (petitioner no. 2 herein) and (iii) M/s Dayal Construction (respondent no.",,

6 herein), for hearing on 30.01.2018 in connection with TDM Case No. 8 of 2018 regarding alleged illegal construction of the building. 11.01.2018:",,

Letter/Report of the Chairman of Tinsukia Municipal Board, addressed to the District Development Commissioner, Tinsukia mentioning that the",,

complaint of petitioner no. 2 is baseless. Also, that the Drawing of the commercial building had been renewed and made valid upto 12.05.2018 as per",,

Section 20 of the Building Rules, 2014. 16.01.2018: Letter of District Development Commissioner, Tinsukia and addressed to the Chairperson of",,

Tinsukia Municipal Board permitting continuation of construction work by respondent no. 6 on the basis of the Enquiry Report dated 11.01.2018.,,

25.01.2018: Institution of the present writ petition i.e. WP(C) 418/2018.,,

The relevant dates having been noticed, as above, the basic facts may be traversed. To be borne in mind, the primary challenge made by the",,

petitioners are in respect of granting of construction permission by the Tinsukia Municipal Board without maintaining the side setbacks for a building,",,

as required under Rule 67 (3) of the aforesaid Building Rules, 2014. Additionally, reference is also made to the action of the Tinsukia Municipal Board",,

in granting permission and approving the Plan and Design despite the fact that the approved Floor Area Ratio (FAR), standing at 318 as well as the",,

Maximum Coverage, standing at 63.43% are in excess of the maximum limit permitted under Rule 74 (2) of the aforesaid Building Rules, 2014. The",,

permission so granted to Gayatri Devi Choudhury was for construction of a residential/commercial complex over a total land area of 7200.00 Sqft. (0,,

Bigha-2 Katha- 10 Lechas). The permission for construction of the RCC building involved a Basement for parking, the Ground Floor up to 4th Floor,",,

with the total height of the building standing at 19.36 meters (63 ft. 6 inches) from the Basement (Road Level) up to the Slab of the 4th Floor. The side,,

setback on the Northern side is maintained at 3 ft. (0.91 meters) and on the Southern side at 3 ft. 3 inches (1 meter). On the above, case laid out by",,

the petitioners are that the Building Permission and the approval of the Plan and Design of the Building by maintaining the aforesaid side setbacks on,,

the Northern and Southern side of the building are contrary to the minimum side setbacks as required to be maintained under Rule 67 of the aforesaid,,

Building Rules, 2014. Further, whereas the maximum permitted Floor Area Ratio (FAR) is to be maintained at 225 and Maximum Coverage to be",,

maintained at 40%, the building permission granted marks a clear departure from Rule 74 (2) of the Building Rules, 2014. Before proceeding further, it",,

would be relevant to extract the provisions of Rule 67 and Rule 74 (2) of the Building Construction Rules.,,

“67. Regulation for commercial buildings.----,,

The regulations for commercial buildings shall be as specified below ---,,

(1) Minimum plot size should be 167.4 sq. m. , while minimum width of plot should be 7.5 m.",,

(2) When setback is up to the height of 11.5 m,--",,

(a) minimum front setback of 3.0 m with 1.5 m cantilever in upper floor;,,

(b) minimum side setback â€" a minimum of 1 m has to be maintained in each side which can be relaxed to only one side if the adjoining plot owner,,

agrees to have a common wall with his building;,,

(c) minimum Rear Setback â€" Up to plot depth of 18 m, should be 1.5 m. while above plot depth of 18 m, should be 3.0 m with maximum 1.5 m",,

projection on the upper floors;,,

(d) if any part of the ground floor or any other upper floor is used for residential purpose or for human habitation, the side setback of the building shall",,

be as per the high density residential zones;,,

(e) a plot abutting a street with a width of above 15 m, the front setback shall be calculated according to the width of the abutting street.",,

(3) Additional rear and side setback for a building when height is above 11.5 m shall be as follows:-,,

Plot size (sq.m),Maximum FAR,Maximum Coverage (%)

Upto 300,200,50

301 to 500,200,45

Above 500,225,40

15 meters, it is also the same as provided under the provisions of the Building Rules, 2014. This being the clear picture, the contention raised by the",,

contesting respondents that the Building Rules, 2014 is without applicability, do not appear to be of any material significance. Be that as it may, I have",,

already held that Building Rules, 2014 would govern the case in hand. Even if an extreme view is taken that the Building Rules, 2014 is not applicable,",,

then also the Uniform Zoning Regulations which existed on the date of submitting the application for permission do not empower the Tinsukia,,

Municipal Board to grant permission by ignoring the provisions relating to the minimum side setbacks provided under Uniform Zoning Regulations. In,,

any view of the matter, the Tinsukia Municipal Board flouted Rule 67(3) of the Building Rules, 2014 while granting permission and approving the plan",,

and design of the RCC building in favour of Gayatri Devi Choudhury.,,

The other issue that remains to be considered is on the point of locus standi of the petitioners to maintain the present writ petition. At paragraph 3,,

and 4 of the writ petition it is stated that the construction made by respondent no. 6 (the Builder) and respondent no. 7 (Husband of Late Gayatri Devi,,

Choudhury) on the plot of land covered by Dag No. 829, Periodic Patta No. 450 is the land adjacent to the southern boundary of the petitioners’",,

house. It is also stated that while carrying out the construction works, the said respondent nos. 6 and 7 had excavated soil just on the side of the",,

boundary wall of the petitioners’ house, causing damage and collapse of a substantial portion of the southern boundary wall. The said statements",,

are not specifically and categorically denied or controverted by the contesting respondent nos. 5 and 7.,,

12 Any construction invading the rights of a neighbour in furtherance to a plan sanctioned by the Municipality which is not in conformity with the,,

building regulations, cannot operate to non-suit the neighbour in maintaining a writ petition. The petitioners herein, as residents in the adjacent area, has",,

the right to compel the Tinsukia Municipal Board to perform duty imposed by the Building Rules, 2014. It is to be borne in mind that the paramount",,

consideration of regulatory provisions for construction activities are public interest and convenience. If sanction is given to build by contravening Rules,,

or Regulations, the jurisdiction of the Courts can be invoked by a resident of the area who alleges his rights being affected by action of an authority",,

whose duty to perform according to the statue is irregularly or illegally demonstrated. In the facts and circumstances, the challenge to the locus of the",,

petitioners is not found tenable. The petitioners are well within their rights to maintain the present petition.,,

In view of the discussions and findings above, this Court interferes with the Building Permission/Renewal Permission made in the name Gayatri",,

Devi Choudhury by making a declaration that the same can be construed to be a valid permission only to the extent of the height of 11.5 meters of the,,

Building in question and not to any further height. Illegality being incurable, the Tinsukia Municipal Board shall now take appropriate steps to ensure",,

strict compliance of Rule 67(3) of the Building Rules, 2014 and in this respect may take appropriate steps by way of causing demolition to that part of",,

the Building in question which offends and is in violation of the mandate of the said Rule 67(3) of the Building Rules, 2014. The nature’s gift of",,

sunlight and air being integral to human existence, the same cannot be replaced by compounding a violation by means of monetary consideration. The",,

Building in question has to be cut to size to bring it within the statutory framework/dimension of Rule 67(3) of the Building Rules, 2014 by doing away",,

with any violation thereof.,,

To the extent above, the Writ petition stands allowed. No cost.",,