WP(C) 6441/2006 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI, CHIEF JUSTICE (ACTING) HON’BLE MR. JUSTICE A.C.UPADHYAY Ranjan Gogoi, CJ (Acting) This writ petition has been filed seeking the intervention of th e Court in respect of a construction that is being raised by the respondent Nos. 4 and 5 in a plot of land adjacent to that of the writ petitioner. According to the writ petitioner, the said construction is of a seven storied building which has been executed in violation of the terms and conditions of a family partitio n deed and the bye-laws of the Guwahati Metropolitan Development Authority (GMDA ). 2. The petitioner is a senior citizen who claims to be living with his family members in a Assam Type House situated at Danish Road, Panbazar, Guwa hati. According to the petitioner, the said house was constructed on a plot of l and measuring 2 Katha 10 ‰ Lecha covered by Patta No. 11, Dag No. 93. It is the further case of the petitioner that Municipal Holding No. 9 and 9A in Ward No. 3 0 have been allotted to the house in which the petitioner is living. 3. According to the petitioner, the adjacent plot of land to the so uth of the plot of the petitioner belongs to the legal heirs of his elder brothe r one Late Ashutosh Sengupta. The respondent No.4, who is the son of the aforesa id Late Ashutosh Sengupta, had entered into an agreement dated 25.9.2004 with th e respondent No.5 who is a builder by occupation. According to the petitioner, b y virtue of the said agreement construction of a five storied building on the co ntiguous/ adjacent plot of land covered by Patta No. 11, Dag No. 94 was contempl ated. Accordingly, the construction work had commenced causing great inconvenien ce to the petitioner. The petitioner has averred that in the course of the cons truction the builder had blocked the drain as well as the road in front of the h ouse of the petitioner resulting not only in accumulation of waste materials and water in the compound of the petitioner but also blocking the entry and exit fr om the house. According to the petitioner, as a result of the construction under taken and the consequential demolition of the existing house, on certain occasio ns the demolition work had caused serious concern to the safety of the inmates o f the house on account of falling objects as a result of the demolition. That ap art, according to the petitioner, the labourers engaged by the respondent No. 5 have proved to be a nuisance intruding upon his privacy. Besides, the building m aterials, according to the petitioner, are being dumped at the work site late at night causing serious inconvenience to him. Furthermore, according to the peti tioner, he had approached the GMDA and the GMC to know the details of the buildi ng permission granted to the respondent Nos. 4 and 5. While the GMC had denied g rant of any such permission, the GMDA has remained silent in the matter. The pet itioner has further averred that physical inspection of the building under const ruction had revealed that the required margin in front, back as well as in the s ides of the building are not being maintained, thereby contravening the bye-laws of the GMDA in force in this regard. Above all, according to the petitioner, th e construction work is being undertaken on the land which is earmarked for a Puj a Mandap in terms of the family partition deeds dated 26.5.72 and 1.7.91. In thi s regard, the petitioner has, however, stated that in respect of the same subjec t matter there was a civil suit initiated by him and the matter is presently pen ding before the appellate Court with regard to the refusal of injunction by the learned Civil Court. The petitioner has also averred that there is another suit pending in the Civil Court at Guwahati which has been instituted by one Smt. Chi traganda Chakraborty claiming 1/3rd of the landed property of late Ashutosh Seng upta, the father of the respondent No.4. It is in these circumstances that the p etitioner has instituted the writ petition seeking the reliefs earlier noticed. 4. The petitioner has filed several supplementary affidavits in the case wherein the precise details of the illegal construction raised by the resp ondent Nos.4 and 5, particularly, with regard to the margins in the front, back and sides of the building have been stated. 5. The GMDA has filed an affidavit through its Town Planner wherein it has been inter alia stated that the allegations made in the writ petition ar e wholly incorrect. According to the GMDA, No Objection Certificate was issued b y it on 13.9.2005 in respect of construction of the lower ground floor and the u pper ground floor and two floors. According to the GMDA, the respondent No.5 had constructed one additional slab without permission for which notice under Secti on 87 of the GMDA Act has been issued on 22.12.2006. Furthermore, according to t he GMDA, physical inspection of the building had indicated certain deviations, t he details of which have been mentioned in para 7 of the affidavit of the GMDA. The aforesaid deviations, according to the GMDA, are also the subject matter of the show cause notice dated 22.12.2006. In the affidavit filed by the GMDA, the allegation of the petitioner that the respondent Nos. 4 and 5 are constructing a five storied building with plans to raise the same upto 7 stories has been cat egorically denied. Furthermore, according to the GMDA, though the respondent No .5 had filed an application for grant of permission for construction of the thir d floor, the same could not be considered by the authorities of the GMDA in view of the pendency of a proceeding registered and numbered as WP(C) (Taken UP) 120 0/2006 before this Court. 6. The GMC has also filed its affidavit in the case wherein it has been stated that on verification it has been found that permission was granted b y the GMDA for construction upto the second floor for commercial use. In the aff idavit filed by the GMC, it has been stated that on inspection it was found that the construction undertaken is without maintaining the necessary set back as pe r approved plans for which notice has been issued under Section 337 of the GMC A ct. 7. From the arguments advanced by Mr PK Barman, learned counsel fo r the petitioner; Mr PK Goswami, learned senior counsel for the respondent Nos. 4 and 5; Mrs. M Hazarika, learned Standing Counsel, GMDA and Mr S Borah, learned Standing Counsel, GMC, it appears that the construction upto the second floor f or which permission had been granted by the GMDA on 13.9.2005 is now complete an d, in fact, space in the building have already been leased out/ sold to differen t persons. If construction upto the second floor for which permission had been g ranted is complete, the question of any further inconvenience or annoyance to th e petitioner, as has been depicted by him in the several paragraphs of the writ petition, will not arise. In so far as construction of the third floor is concer ned, it appears that the respondent No.5 had undertaken the said construction af ter expiry of 30 days from the date of application for permission in view of the deeming provision contained in Section 25(4) of the GMDA Act. However, accordin g to the GMDA, the said application for permission could not be considered till date on account of pendency of WP(C) (Taken UP) No. 1200/2006. As the aforesaid writ petition has now been disposed of and the embargo imposed by the orders pas sed therein has been lifted, the said application for permission can now be cons idered by the GMDA in accordance with the provisions of the Act and its bye-laws . In so far as the fourth floor of the building in respect of which permission h as also been sought by the respondent No.5 is concerned, Mr Goswami, learned sen ior counsel for the said respondent has submitted that under the amended bye-law s of the GMDA which are now in force, the construction of the fourth floor may n ot be feasible or permissible. In view of the above, no orders from the Court wi ll be called for in so far as the construction of the fourth floor of the buildi ng is concerned. 8. The above facts would also clearly demonstrate that the allegati ons made by the petitioner to the effect that the respondent Nos. 4 and 5 have u ndertaken construction of a five storied building with plans of vertical expansi on upto seventh floor is not correct. In so far as construction on the land earm arked for the Puja Mandap is concerned, the Court is of the view that the afores aid question is directly in issue in T.S. No. 119/2005. In fact, the learned Tri al Court by order dated 20.6.2005 had refused to grant injunction to the petitio ner who was the plaintiff in the said suit and the said order has been affirmed in appeal by order dated 9.5.2006 passed by the learned Addl. District Judge, Ka mrup. As the rights of the respective parties with regard to the land earmarked for Puja Mandal by the family partition deeds is directly in issue in a civil li tigation which is pending before the competent Court, it would be highly inappro priate for this Court in exercise of its powers under Article 226 of the Constit ution to deal with the said question. The Court, therefore, is of the view that it would not be appropriate to enter into any discussion on the said issue raise d by the petitioner. 9. In so far as the deviations noticed by the GMDA and GMC in the c onstruction raised by the respondent Nos. 4 and 5 are concerned, it will be suff ice to say that under the provisions of the GMDA Act and the GMC Act there are a dequate provisions for compounding deviations from the approved plans on payment of the requisite fee/ fine. Such deviations, therefore, will have to be dealt w ith in accordance with the Acts in force. 10. The sum total of the discussions that have preceded would indica te that the respondent Nos. 4 and 5 have completed construction upto the second floor of the building for which permission was granted by the GMDA on 13.9.2005. The question of construction of a five storied building with plans to raise it to seven stories, as claimed by the petitioner, on the face of the record does n ot appear to be correct. In so far as the third floor of the building is concern ed, the matter is pending before the GMDA and as the fetters on the power of the GMDA to deal with such construction has been removed by disposal of WP(C) (Take n UP) 1200/2006, the GMDA will now pass appropriate orders on the application of the respondent No.5 for raising construction on the third floor. In so far as t he fourth floor of the building is concerned, it has been stated by the learned counsel for the respondent No.5 that such construction would not be feasible or permissible under the amended bye-laws. No orders on the said aspect of the case , therefore, will be called for. The question of deviation noticed by the GMDA and GMC in the construction raised by the respondent Nos.4 and 5, as already dir ected, will be dealt with in accordance with the provisions of the relevant sta tutes holding the field. 11. Having identified the core issues arising in the case and having dealt with the same in the manner indicated above, it is our considered view th at no further order in this writ petition will be justified. 12. The writ petition, consequently, shall stand disposed of in the above terms. In the facts and circumstances of the case, the parties are left to bear their own costs.