WP(C) 2251/2007 BEFORE HON’BLE THE CHIEF JUSTICE MR J CHELAMESWAR HON’BLE MR JUSTICE AMITAVA ROY Heard Mr S Shyam, learned counsel for the petitioners. Also heard Mrs M Hazarika , learned senior counsel appearing for the GMDA and Mr D Bora, learned counsel f or the 4th respondent. This writ petition is filed challenging a notice dated 8-5-07 issued by the 2nd respondent herein calling upon the petitioners to demolish certain unaut horized constructions made in the building of the petitioners. As per the said n otice there were three objectionable items in the construction - 1) Unauthorised Assam type construction over rear set back and northern side set back; 2) 0.6 m deviation at southern side by extension of RCC building and 3) Construction of boundary wall with more than 1.5m height. In the said notice it was indicated th at if the petitioners failed to demolish the said portions of the construction t he respondents would undertake the demolition of the objectionable portion of th e construction without any further notice. The case of the petitioners is that the petitioners jointly purchased a piece of land measuring approximately about 9 Ls situated at Sahar Guwahati alon g with an existing old Assam Type house thereon, the further details may not be necessary. It is further the case of the petitioners that the above mentioned pr operty purchased by them was a part of a larger piece of land measuring approxim ately 20 Ls alongwith an old Assam Type two storied building on the said plot. C onsequent upon the purchase by the petitioners 9 Ls of land along with a part of the original building referred to above fell for the share of the petitioners. The petitioners demolished that portion of the building which fell to their shar e and constructed a new building in its place, after obtaining appropriate permi ssions from the various statutory authorities. It is the case of the petitioners that on a representation made by the 4 th respondent herein, who according to the petitioners is the sister of the vend or of the property, the impugned show cause notice was issued to the petitioners . The 4th respondent filed an affidavit wherein the respondent admits the fact t hat she did in fact make a representation to the authorities (the 3rd respondent herein) complaining about certain deviations from the requirement of law in the construction being made by the writ petitioners. Though the 4th respondent does not clearly indicate her status vis-a-vis the building in which she was residin g, i.e. the property of the vendor, she admits that she has been living in the s aid property. It is in the background of the above mentioned facts by an order dated 9 -5-08 this court for reasons recorded thought it fit to appoint an Advocate Comm issioner in whose presence a joint inspection of the property in issue was requi red to be made to ascertain the true state of facts. Pursuant to the said order the Advocate Commissioner appointed by this court submitted a report dated 10-6- 08. We have already noticed that the impugned show cause notice pointed out three items of deviation in the construction made by the petitioners. Insofar as the first of the deviations pointed out by the impugned show cause notice it is the admitted case of all the parties to the present writ petition as on today t hat the unauthorized construction which was the subject matter of the first item of the show cause notice has since been demolished by the petitioners and, ther efore, nothing survives for adjudication insofar as that portion of the impugned order is concerned. Coming to the second deviation pointed out by the impugned show cause no tice, according to the show cause notice the petitioners’ construction on the So uthern side is in deviation of the approved plan and contrary to the relevant By e Laws in the sense that there was an extension of the building on the Southern side by 0.6 mtrs beyond the permissible limit under the relevant Bye Laws made b y the respondent authorities. The Advocate Commissioner in his report referred t o above stated in the context of the above mentioned deviation that the represe ntatives of the GMDA stated that the deviation of 0.6 mtrs is being within the p ermissible limit the same can well be regularized . Neither the GMDA nor the 4th respondent ever filed any objection to the above report of the Advocate Commiss ioner. Therefore, it is to be taken that the deviation on the Southern side is w ithin the permissible limit which can be regularized under the existing provisio ns of law. Subsequent to the Advocate Commissioner’s report a further proceeding wa s issued by the respondent authorities dated 10-2-08. It appears from the said p roceeding that the petitioners made a representation a few days after the inspec tion praying the respondent authorities to regularize the 3rd of the deviations pointed out by the impugned show cause notice. In response to the said represent ation the 2nd respondent issued the above mentioned proceeding dated 10-7-08 ind icating that the two deviations of which the petitioners sought regularization w ere non compoundable u/s 88 of the GMDA Act and, therefore, it was not possible to regularize the same. However, it is to be mentioned here that while the origi nal objection of the respondent authorities in the context of the second deviati on, pointed out in the impugned show cause notice, was that there was a deviatio n of 0.6 mtrs on the Southern side, in the proceeding dated 10-7-08 it is record ed by the 2nd respondent as follows :- 1) The area constructed beyond the compoundable portion of 0.75 m on all sides . It may be mentioned in this context that at the time of issue of show cause no tice referred above only columns were executed with 0.6 m deviation as mentioned in show cause notice. But subsequently it is found that brick walls were constr ucted upto maximum 1.5 m. 2) Height of boundary wall beyond the maximum 1.5 m height allowed as per bye laws as your submission of raising the height of the wall for protection of rain water cannot be entertained under the provision of byelaws. From the above extracted portion of the proceeding dated 10-7-08 it appe ars that it is the case of the 2nd respondent that though the deviation initiall y indicated in the impugned show cause notice on the Southern side is only 0.6 m trs there was a subsequent further deviation on the Southern side of the buildin g thereby making a deviation beyond the permissible limit of compounding and con sequently the petitioners’ representation could not be considered. When the matter was taken up on the previous occasion on 7-5-09 the lear ned counsel for the petitioners pointed out that the stand of the respondents in sofar as the second of the deviations, pointed out by the impugned show cause no tice, varied by the date of the proceeding dated 10-7-08 and is without any fact ual basis. On the other hand the learned counsel for the respondent GMDA submitt ed that the above extracted finding was arrived at by the respondents on the bas is of an inspection held by the GMDA authorities implying that there was a furth er deviation beyond the one pointed out by the impugned show cause notice under item No.2, during the pendency of the present writ petition. The said assertion of the respondent was seriously disputed by the petitioners and, therefore, we t hought it fit to call upon the respondents to produce the records to establish t he basis on which such a finding is recorded. Pursuant to the said direction the respondents produced the records from which it appears that there is a report of field inspection of the building bel onging to the petitioners which is an undated report nor does the report disclos e the details of the person who conducted the said field inspection. On the othe r hand when we asked about the basis of the field inspection the learned counsel for the respondent GMDA pointed out that in the process of examining the feasib ility of accepting the petitioners’ representation dated 23-6-08, referred to ea rlier, there was a further inspection of the site in question by the officers of the GMDA and on such inspection it was noticed that there was a further deviati on insofar as item No.2 of the impugned show cause notice is concerned during th e pendency of the writ petition. We must state here that the representation dated 23-6-08 of the petition ers is only for regularization of the third of the deviations pointed out in the impugned show cause notice and it had nothing to do with the second of the devi ations. Conceding that the respondent authorities, who were discharging the resp onsibility of enforcing the law have the necessary power to periodically inspect the construction that was being made. If really the respondent authorities did find a further deviation in the construction made by the petitioners they ought to have issued a fresh show cause notice putting the petitioner on notice the re levant facts. No such fresh show cause notice is issued. On the other hand in th e purported consideration of the representation made by the petitioner on 23-6-0 8 the respondents mentioned that there was such a further deviation and also the decision that such further deviation was made during the pendency of the writ p etition. Coupled with the said irregularity in the procedure adopted by the resp ondent authorities the fact that at the time of joint inspection in presence of the Advocate Commissioner on 20-5-08 no such further deviation on the Southern s ide was noticed by the respondents. It requires necessarily to be on record as t o on what date the field inspection was conducted and by whom it was conducted. Unfortunately the record does not disclose any one of these details. In the circ umstances we cannot accept the stand of the respondent GMDA that there was a fur ther deviation by the petitioner on the southern side of the building. Coming to the third of the objections pointed out by the respondents in the impugned show cause notice we are of the opinion that undoubtedly the constr uction of the compound wall on the eastern side of the building of the petitione r is not in conformity with the stipulation of the relevant Bye Laws. Admittedly under the relevant Bye Laws the maximum height of a compound wall to be constru cted is 1.5 mtr. It is also admitted by the petitioners that they made construct ion of the compound wall beyond the permissible limit to a height of 9 ft. The r easons given by the petitioners for such deviation is at para 5 of the additiona l affidavit filed by the writ petitioners on 20-8-08 which reads as follows :- & & However, in so far as the objections as to the raising of 9’ high boundary wall constructed by the Petitioners on the eastern boundary so as to protect th eir property from being damaged by the rain water spilling over from the adjacen t Assam Type House belonging to the Respondent No.4, the Respondent Authorities maintained that the aforesaid issue was not within their domain and the same nee ded to be addressed to the Guwahati Municipal Corporation (GMC), which is the co mpetent authority to look into the matter. The assertion of the petitioners that rain water from the roof of the 4t h respondent’s building spills over the property of the petitioners remains undi sputed. On the other hand the Advocate Commissioner’s report in this regard stat ed as follows :- & &While the petitioner constructed an RCC building by taking down and clearing that portion of the old Assam Type house as it is. It was noticed that the west ern side of the house wall of the respondent No.4 stands and touches the tall bo undary wall constructed by the petitioner. The overhead CI sheet roof of the two storied Assam Type house juts and slopes towards the land of the petitioner. In case of rain, water will certainly fall upon the petitioner’s land from the pro jecting roof of the Assam Type house, unless arrangements are made for trapping the rain water on the edge/eaves of the projecting roof itself and/or by any alt ernate method for draining out the rain water to one particular point at the gro und level instead of allowing it to fall directly upon the petitioner’s land. The petitioner has stated that he is primarily aggrieved of the rainwater fallin g on his land from the roof of the Assam Type house. According to him, if he has to break down the wall and remove the Tin Sheet cover, it will seriously damage his building on the eastern side in course of time. To this end alone he seeks a solution as per law. Whether the 4th respondent or anybody through whom the 4th respondent is claiming her right (which is not very clear from the representation of the 4th respondent) has any legal right, easementary or otherwise , to allow water from the roof of the 4th respondent’s house to spill over to the property of the peti tioners is a mixed question of fact and law. But in view of the report of the Ad vocate Commissioner’s report the possibility of such spilling over appears prima facie true. On the other hand faced with a question as to the rationale and pur pose behind prescribing the upper limit of the height of compound wall at 1.5 mt rs the learned counsel for the respondent GMDA submitted that such a prescriptio n is made to allow free passage of air and light to the neighbours in all cases. In response to a further query by the court the learned counsel for the GMDA as well as the learned counsel for the 4th respondent made a categorical assertion that the 4th respondent’s building does not have any door or window on its west ern side. Such being the case the question of obstruction caused by the compound wall in giving free passage of air and light to the 4th respondent’s house does not arise. At any rate, we do not propose to go into that question in the prese nt case as the forum under Article 226 of the Constitution is not the suitable f orum to adjudicate such disputes. But in the background of the above mentioned f acts we are of the opinion that there is a technical violation on the part of th e petitioners, insofar as the construction of the compound wall, referred to abo ve, beyond the limit permissible in law. The fact remains that the petitioners a re entitled to protect their property as well as legal rights from damage or inj ury which they claim would result by not permitting the petitioners to raise the height of the wall beyond the permissible limit. We are of the opinion that thi s dispute depends upon the establishment of the respective rights of the petitio ners as well as the 4th respondent. The 4th respondent cannot be permitted to ta ke advantage of the prescription of law to compel the other respondents to demol ish the portion of the compound wall in the name of enforcement of rule of law a nd gain an advantage as the entitlement of the same to the 4th respondent is dou btful at this stage. In the circumstances we are of the opinion that the petitioners and the 4th respondent are at liberty to settle their respective rights in this regard b efore the appropriate forum and if such rights are settled the respondent author ities shall decline from giving effect to the impugned show cause notice insofar as the 3rd of the objections are concerned. Goes without saying, in view of wha t we have recorded earlier the first of the objections raised by the impugned sh ow cause notices does not exist and the second of the deviations, for the reason s recorded, is found to be a compoundable one and, therefore, need not be demoli shed. The writ petition is, therefore, allowed as indicated above.