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Judgment
Date : 11.08.2026 Heard Mr. B.M. Deka, learned counsel for the petitioner; Mr. S. Bora, learned Standing Counsel, Housing & Urban Affairs Department, Government of Assam & Guwahati Metropolitan Development Authority [GDMA] for the respondent nos. 1 & 2 and Mr. U. Sharma, learned Standing Counsel, Secondary Education Department for the respondent no. 3.
It is the case of the petitioner that the petitioner school is a Non-Government Educational Institution and it has obtained provisional prior permission and provisional registration under the Assam Non-Government Educational Institution [Regulation and Management] Act, 2006 [‘the 2006 Act’, for short]. On the basis of such permission and registration under the 2006 Act, it has admitted students for imparting education from Class-I to Class-XII. Though for establishing a permanent campus it had already purchased a plot of land measuring 5 Bighas at Revenue Village – Senabor, Mouza – Dimoria, District – Kamrup [M], Assam, the permanent campus could be set up in time due to various hurdles. In order to operationalize the school, the petitioner School had taken a RCC building [G+2] having an area of 7000 square feet on rent at Beltola, Guwahati. It has also taken an adjoining plot of land measuring 10 Lessas on rent for parking purposes.
In this writ petition preferred under Article 226 of the Constitution of India, the petitioner has primarily assailed an Order dated 15.07.2026 passed by the respondent no. 2 whereby the respondent no. 2 has ordered that the owners/occupiers and the management of the petitioner school shall discontinue the institutional use of the building and voluntarily seal the premises within seven days from the date of receipt of the order.
It is stated that the Principal of the petitioner School was earlier served with a Notice on 02.06.2026 by the respondent no. 2 under Section 87 of the Guwahati Metropolitan Development Authority Act, 1985 [‘the GMDA Act’, for short] informing that the petitioner school had been operating from a residential RCC [G+2] Building which was permitted for residential use only. By the Notice, the respondent no. 2 had directed the petitioner school to stop the operation of institutional use of a residential building and was asked to show cause as to why the alleged unauthorized use of the Building should not be demolished under Section 88[1] or the premises in which the school was being run should not be sealed under Section 88[4] of the GMDA Act.
Responding to the Notice dated 02.06.2026, the petitioner school submitted a Reply on 08.06.2026 explaining the reason as to why no coercive action including sealing of the premises under Section 88 of the GMDA Act should be taken against it, more particularly, in the larger interest of the students and for the cause of education. It was further represented that the petitioner school was making all efforts to shift the institution to its permanent campus after completion of the necessary infrastructure.
It is in such backdrop, the impugned Order dated 15.07.2026 has come to be passed. In the impugned Order, it is mentioned that in the event the petitioner school does not discontinue the institutional use of the Building and voluntarily seal the premises within a period of seven days, the authorities in the GMDA would proceed to seal the premises and take further action as deemed fit under the provisions of the GMDA Act and other applicable laws, at the risk and cost of the concerned parties.
A number of contentions have been advanced by Mr. Deka, learned counsel appearing for the petitioner while assailing the legality and validity of the impugned Order dated 15.07.2026.
On the other hand, Mr. Bora, learned Standing Counsel, GMDA has submitted that the impugned Order is an appealable order and the petitioner without exhausting the remedy of appeal, has approached this Court directly invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution and therefore, this writ petition is not to be entertained. He has further submitted that the petitioner is to be directed to seek recourse of the statutory remedy of appeal which is available under Chapter-VIII of the GMDA Act.
I have considered the submissions advanced by the learned counsel for the parties and have also gone through the contents of the Notice dated 02.06.2026, the Reply dated 08.06.2026 and the impugned Order dated 15.07.2026.
A Constitution Bench of the Hon’ble Supreme Court in Thansingh Nathmal vs. the Superintendent of Taxes, Dhubri and others, AIR 1964 SC 1419, has observed as under :-
7.……The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution, the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.
If the Court reaches a satisfaction that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. Where a remedy of appeal is provided by the statute, the party must exhaust the statutory remedy before resorting to writ jurisdiction for relief.
On perusal of the provisions of the GMDA Act, more particularly, Chapter-VIII, it is found that the petitioner has a statutory remedy of filing an appeal against the impugned Order dated 15.07.2026.
Chapter VIII of the GMDA Act under the heading – ‘Appeals and the Appellate Authority’, contains Section 71, Section 72 and Section 73. For ready reference, Sections 71, 72 & 73 are quoted hereinbelow :-
Appointment of appellate authority :
[1] Save as otherwise provided, the State Government shall appoint an appellate authority to hear all appeals arising out of the provisions of this Act. The decision of appellate authority shall be final. [2] The person or persons appointed by the State Government as appellate authority shall have the qualification of a District Judge, or of becoming a member of the Assam Board of Revenue constituted under the Assam Boards of Revenue Act, 1962 [Assam Act XXI of 1962]. The appointment shall be on such terms and conditions as the State Government may decide.
Duties of the appellate authority :
[1] The duties and powers of the appellate authority shall be as follows: [a] to hear and decide appeals against the orders of the authority; [b] to decide and hear appeals in respect of such other matters and exercise such other powers as may be entrusted to and conferred upon it by the State Government in accordance with the provisions of this Act.
[2] All appeals to the appellate authority shall be filed within a month from the date of the order appealed against. The time required for taking out copies of the order shall be excluded. The appellate authority may, however, in its discretion condone such delay in filing appeal for sufficient reasons.
Procedure of working of the appellate authority :
[1] The appellate authority shall conduct its proceedings in the prescribed manner after giving the opposite party or anyone interested in the order appealed against an give opportunity of being heard.
[2] The appellate authority may, at any time, call for any extract from any proceeding of the State Government or authority and call for any return or statement or report concerning or connected with any matter with which the authority has been authorised to deal.
[3] The appellate authority shall have all the powers of a Civil Court for the purposes of taking evidence on oath or enforcing the attendance of witnesses including the parties interested or any of them and compelling the production of documents and material objection if considered necessary.
[4] The appellate authority in its discretion may make any orders regarding the cost to be paid by any of the parties to the proceeding and the appellate authority shall have full power to determine by whom or out of what property and to what extent such costs are to be paid and the authority shall be bound to execute the orders of the appellate authority in accordance with the directions, if any, contained in the order and such costs or amounts awarded by the appellate authority shall be realised as arrears of land revenue.
By a Notification bearing no. GDD.49/94/Pt/44 dated 22.08.1996 issued under Section 71[2] of the GMDA Act, 1985, the State Government with the approval of the Gauhati High Court, had designated the District & Sessions Judge, Kamrup, Guwahati as the Appellate Authority to decide appeals as the provisions of the GMDA Act
As per sub-section [2] of Section 72 of the GMDA Act, an appeal to the appellate authority is to be filed within a month from the date of the order appealed against. The time required for taking out the copies of the order is to be excluded. In addition, the Appellate Authority also has the discretion to condone any period of delay in filing an appeal for sufficient reasons.
As the petitioner has the statutory remedy of appeal under the GMDA Act and as the Appellate Authority has been vested with all the powers of a Civil Court for the purpose of taking evidence on record or enforcing the attendance of witnesses including the parties interested or any of them and compelling the production and documents and material objection, if considered necessary, apart from the power to condone any delay, the Appellate Authority can also determine any questions of fact which might fall for determination in the course of the appeal whereas ordinarily, in a writ proceeding, disputed questions of fact are not to be decided.
As the period of limitation of one month has not expired till date and in view of availability of such adequate, efficacious and alternative statutory remedy of appeal, this Court is not inclined to entertain this writ petition reserving the liberty to the petitioner to avail the statutory remedy under the provisions of the GMDA Act by filing an appeal before the Appellate Authority in an expeditious manner, preferably, within the period of limitation. It is accordingly observed.
It is further observed that if the petitioner prefers an appeal, the Appellate Authority shall consider the same by taking into consideration all the relevant factors. It is further observed that if the petitioner makes any prayer for interim relief, the Appellate Authority shall consider the same on its own merits and in accordance with law. While parting with, it is observed that the respondent authorities, more particularly, the respondent no. 2 shall not initiate any action against the petitioner till the expiry of the period of limitation of filing an appeal. It remains open for the petitioner to raise all contentions before the Appellate Authority and none of the observations made hereinabove shall be construed as observations on merits of the claim of either the petitioner or the respondent authorities.