Case: Priyanka Estates I'National P.Ltd.  Vs. State Of Assam

2. The principal question that emerges for consideration in these appeals is whether to sustain the order of demolition as passed by the Gauhati High Court vide impugned judgment and order or to put an imprimatur of this Court to the unauthorised constructions raised by M/s. Priyanka Estates International (P) Ltd. (Appellant No.1 herein) beyond 5= floors. Facts material for deciding the said appeals are mentioned hereinbelow3. For the sake of convenience, the facts appearing in SLP (C) No. 14480 of 2006 titled as M/s Priyanka Estates International (P) Ltd. & Others Vs. State of Assam & Others are taken into consideration. Appellant No.1 is a company of which Appellant Nos.2 & 3 are Directors4. Appellant No.1 herein purchased an open piece of land approximately admeasuring 4.62 Kathas from one Smt. Nandita Banerjee on 9.8.1999 by registered deed of sale. Prior to execution of sale, the vendor of Appellant No.1 applied to Guwahati Metropolitan Development Authority (hereinafter referred to as GMDA) for grant of `No Objection Certificate for sale of land. The said permission was accorded on 17.7.1999 mentioning therein that permission is granted for "residential-cum-commercial use" of the said plot and that proposed width of the road abutted by plot is approximately 50 feet5. Pursuant to the said permission, Sale Deed was executed in favour of Appellant No.1, whereafter it applied to Guwahati Municipal Corporation (hereinafter referred to as GMC) on 16.11.1999 for according permission for construction of basement, ground, mezzanine, first, second, third, fourth and half of 5th floors. The permission was accorded to M/s. Priyanka Estates International (P) Ltd. on 03.02.2000 by the GMC for construction of basement, ground floor, mezzanine upto fourth floor and half on the 5th floor. For 1st floor to fourth, the floor area permissible was 7283 sq. ft. but on 5th floor, the permissible floor area was fixed at half of it, i.e., 3817 sq. ft only. It was granted on certain conditions as mentioned in the sanction dated 3.2.20006. Thereafter, on 08.02.2000, Appellant No.1 applied for grant of permission for construction of remaining part of 5th, 6th, 7th and 8th floors. This permission was refused by GMC on 27.3.2000 on the following grounds"i) Maximum allowable height of building can be 76 and proposed height would be 93ii) The margin on both sides and rear is less than required normsiii) FAR is exceeded than allowable 300iv) The structural certificate is not submitted."So, proposal for 5th (part) 6th, 7th and 8th floor building, permission was rejected7. Feeling aggrieved by the said rejection by GMC, appellants preferred an appeal under Section 438 of the Guwahati Municipal Corporation Act, 1971 (hereinafter referred to as the Act) before the Standing Appellate Committee (in short SAC)8. This came to be disposed of on 5.5.2000 with the following directions:"In view of the above discussion as well as observation, in our considered opinion, the appellants case deserve consideration. Accordingly, we hold that the appellant be accorded permission as sought for. We hereby set aside the impugned order, as aforesaid, passed by the Commissioner, GMC, the RespondentIn the result, the appeal is allowed."9. Since, despite the fact that SAC had allowed the appeal of Appellants with regard to construction of 5th (part), 6th, 7th and 8th floors, no formal permission was still accorded by Commissioner GMC to it, they moved further application on 28.8.2001 before Administrator-cum- Minister, Guwahati Development Department, as it appears by that time, GMC had been dissolved10. The said appeal was considered by Administrator-cum-Minister and the appeal verdict was reviewed on 29.5.2002 with certain conditions as mentioned hereinbelow :"i) To obtain NOC from State Fire Department;ii) Submit affidavit regarding the Structural Certificate;iii) Compulsory covered parking and private service system like drainage, sewage, storm drain, water supply etc.;iv) No further FAR beyond 487.00;v) To submit completion certificate and obtain Occupancy Certificate from GMC;vi) To pay a penal charge to the Corporation amounting to Rs.10,00,000.00 (ten lacs);vii) Your building is liable for instant demolition at your own risk and cost in case of non-compliance of the above."11. However, it appears that without compliance of the aforesaid conditions fully and without getting actual sanction for construction of building beyond 5= floors from the Commissioner of G.M.C. Appellants continued with the construction activities and tried to complete the same12. Guwahati Metropolitan Development Authority (As already referred to as GMDA) now came into picture and issued notice to Appellant No.2 on 02.02.2001 to show cause and to give explanation as to without grant of proper sanction under GMDA Act, how the construction work is progressing13. Another notice by GMDA was issued to the Appellant No.2 on 5.9.2001 asking to remove/demolish the building/construction/ development or the portion erected by them which is in violation of the provisions of Guwahati Metropolitan Development Authority Act (for short the Development Act). No replies to the aforesaid two notices were sent by the Appellants herein on the ground that the same were not received14. Last and final notice in this regard was issued by GMDA on 18.2.2002 mentioning therein with regard to earlier two notices sent on 2.2.2001 and 5.9.2001 and finally asking the Appellants to remove the construction within three days from the receipt of this last notice failing which, necessary action as per provision of the Development Act will be initiated without giving further intimation15. Appellants replied to the said last notice on 18.2.2002 mentioning therein that they had not received the earlier two letters but mentioned that permission has been granted by GMC on 3.2.2000, and is still operative, which clarified the position of construction of the building beyond 5= floors also but did not actually present any sanctioned or approved plans/maps beyond 5= floor16. Not being satisfied with the reply to the show cause notice, submitted by the Appellants, the Respondents proceeded to issue another notice to the Appellant No.2 on 3.5.2002, with a categorical statement that construction over and above 6th and 7th floor was wholly illegal, without due sanction and therefore, the same be removed/demolished17. It appears that, thereafter, some correspondence between the parties continued. Finally on 31.7.2002 by two orders, the Commissioner, GMC informed the Appellant No.1 that plans submitted by them are insufficient for the following reasons and requested it to furnish the required materials as under and to forthwith stop the construction :"1. Affidavit for structural design as per format at the building bye laws2. NOC from State Fire Department3. Declaration in affidavit to maintain the FAR within 487."18. The Appellants, therefore, were constrained to move the High Court challenging the said order dated 31.7.2002 by filing W.P.(C) No.5018 of 2002 purportedly under Articles 226 and 227 of Constitution of India19. Further order of demolition came to be issued to the Appellant No.2 by GMDA on 30.5.2006, clearly mentioning therein that no sanction was obtained by the Appellants under Section 24 & 25 of the Development Act and had actually violated the provisions of Building Bye-laws of Guwahati Municipal Corporation (for short, building bye-laws), in the following manner :"1. FAR of the building is 490 which exceeds allowable FAR 3002. Maximum floor height 93 exceeds allowable height 76 in this road3. Since the building is mixed used with residential at top floors, setback required is 15 side to 20 rear, which is not maintained4. Balcony projection is allowed, maximum < of the building length in any side, which is not maintained5. Two staircases and lift on opposite direction is required which is not available in the building as per building plan6. Construction of building is going on despite our order to stop construction."20. The said order further directed demolition of the building beyond the sanctioned plan dated 3.2.2000. The Appellants, therefore, challenged the said order dated 30.5.2006 issued by Chief Executive Officer GMDA by filing another W.P.(C)No.2747 of 2006. In W.P.(C) No.5018 of 2002, (earlier W.P. filed in the Gauhati High Court) an order of status quo came to be passed on 12.8.2002 and it further directed that Municipal Authority shall take no steps to pull down the building and the operation of the letter dated 31.7.2002 was stayed21. It appears that pursuant to the said order, Appellants continued with the construction activities presumably on the ground that order of status quo is against the Respondents of the Writ Petition and not against the Appellants. Thus, Sanatan Dharam Sabha, Guwahati filed an application seeking permission to be impleaded in the said petition and also bringing to its notice that despite the order of maintenance of status quo, Appellants are continuing with the construction. Thus, another order clarifying the earlier order came to be passed by the High Court on 20.9.2002 whereby a categorical direction was issued that no further construction over the said land shall be made and all construction activities should come to a standstill immediately. It appears that only after passing the said order, Appellants stopped the construction work22. Sanatan Dharam Sabha alongwith three residents of Panbazar locality of Guwahati city filed W.P.(C) No.5146 of 2002 in the Gauhati High Court against the action of GMC and GMDA granting permission to the appellant, M/s. Priyanka Estates for multi-storeyed building in question and prayed for its demolition23. Thus, all the three petitions, i.e. W.P.(C) No.5018/2002, W.P.(C) No.2747/2006 and W.P.(C) No.5146/2002 were consolidated for the purpose of analogous hearing and have been disposed of by Division Bench of Gauhati High Court vide impugned judgment and order dated 28.7.2006. Vide impugned judgment, the Writ Petitions preferred by Appellants herein numbered as 5018/02 and 2747/06 having been found devoid of merit and substance were dismissed but W.P.(C) No. 5146/2002 filed by Sanatan Dharam Sabha has been allowed to the extent indicated in the impugned order24. Feeling aggrieved and dissatisfied with the aforesaid judgment and order, civil appeal arising out of S.L.P.(C)No.14480/06 titled, M/s. Priyanka Estates International (P) Ltd. & Ors. vs. State of Assam & Ors. has been filed by Builder and its Directors; civil appeals arising out of S.L.P.(C) No.15546/06 titled, Vishal Saraf v. State of Assam & Ors. and civil appeal arising out of S.L.P.(C)No.15547/06 titled, Suresh Kumar Harlalka v. State of Assam & Ors. have been filed by owners of flats on 7th floor and civil appeal arising out of S.L.P.(C) No. 16898/06 titled, Sarla Devi Lahoty vs. State of Assam & Ors. has been filed by owner of one flat on 6th floor. Insofar as civil appeals arising out of S.L.P.(C) Nos.28291-28294/2009 titled, Shyam Sunder Agarwala vs. State of Assam & Ors. are concerned, the same have been filed by owner of one flat on 5th floor only. Since the matters were common and identical challenging primarily the order passed by Division Bench of the High Court and pertained to the same building claiming identical reliefs, these Appeals have been heard together. Perused the records.

Court's reasoning:
79. The instant case is not a case of breach of contract. It is a clear case of breach of the obligation undertaken to erect the building in accordance with building regulations and failure to truthfully inform the warranty of title and other allied circumstances80. Even though at the first instance, we thought of invoking this Courts jurisdiction conferred under Article 142 of the Constitution of India so as to do complete justice between the parties and to direct awarding of reasonable/suitable compensation/interest to the flat owners, whose flats are ultimately going to be demolished, but, with a very heart, we have restrained ourselves from doing so, for variety of reasons and on account of various disputed questions that may be posed in the matter. However, we grant liberty to those, whose flats are ultimately going to be demolished, to exhaust the remedy that may be available to them in accordance with law81. We also feel it necessary and expedient to direct the Respondent-authorities that if ultimately flat owners, whose flats are going to be demolished shall be given at least three months time to vacate the same. This would enable them to mitigate the losses that may be incurred by them. We accordingly direct so