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Mrs. Achala Bora v. The State Of Assam and ors. PIL 39/2009
The PIL has been filed by the resident of Kancharigaon locality of Tezpur town against the illegal expansion of the building constructed in the area. The PIL has been filed in the High Court of Guwahati headed by Hrishikesh Roy. According to the petitioner, the respondent in the place of parking has constructed a restaurant and reception in the commercial building where a shopping mall and a hotel are operating and further they have constructed two extra floors, in violation of the conditions in the building permit granted by Tezpur Development Authority on 28.02.2008. According to the permit granted for the construction of multi-storied building consisting of G+5 where the ground floor was reserved for parking according to the drawing and front set back of 20 ft and Rear set back of 13ft.
The respondent has constructed two extra floors beyond the G+5 floors and also located the hotel reception area and restaurant on the ground floor which was marked for parking according to the permit granted by The Tezpur Development Authority. Further, the petitioner contended that the setbacks need to be maintained in the front and rear side of the building. Therefore, they seek demolition of unauthorised extension made by the respondent.
The learned counsel of the respondent argues that the building satisfies the norms notified under sec 10(2) of the Assam Town and Country Planning Act, 1959 also known as Town Planning Act. The learned counsel justifies that the construction of two extra floors beyond the 5th floor is done with the permission, under sec 13(4) of the Town Planning Act.
As per the additional affidavit filed by Tezpur Development Authority, the building consists of seven floors out of which the 1st and 2nd floor is for retail business, the rest of the building including the ground floor is used as the Hotel and restaurant in the area. The affidavit suggests that the building has failed to maintain the rear and front set-back. Moreover, two extra floors were constructed beyond the permitted five floors. The staircase connected to the 1st floor and the reception and the restaurant in place of parking. Therefore, the petitioner contended that unauthorized addition and usage were deliberately made by the builder.
The zoning regulations provide that when a hotel and shopping mall is in the same building it is necessary to give parking space for such an establishment because of the rush which may be caused with all the traffic. The ground floor which was supposed to be reserved for parking is now a restaurant and a reception of the Hotel. To justify the usurpation of the ground floor an alternate area is provided for parking at a distance of 120 meters which shall have met the requirement of off-street parking space.
The court on which said that it cannot be accepted that the alternate off-street parking at a distance of 120 meters from the building, will satisfy the requirement of parking for the hotel and the shopping mall complex, which attracts a large number of customers.
The building permit granted by the Tezpur Development Authority allowed a G+5 floor structure, extending 17.7 meters, whereas the builders have constructed a building of 22.5 meters height, with two extra floors. The learned counsel of the respondent justifies the construction of extra floors with a plea that the building permit was applied for the construction of 6th floor but there was no refusal within the permitted one month to the builder's application by the Tezpur Development Authority on this projection expansion is covered under the deemed permission, under sec 13(4) of Town Planning Act. In support, the council cites cases of Golop Sarma v. Guwahati Metropolitan Development Authority 1995(2) GLP 365 and Kula Prasad Gogoi v. State of Assam (2008) 2 GLR 786
The prime significance here was that the builder applied for permission of 6th floor only after the 'stop construction ' notice was served upon by the Tezpur Development Authority. Again a 2nd notice was to stop any further construction of the 6th floor and all other construction. The builder has applied for further construction of after they were served with the stop-construction notice. Hence, this cannot be allowed as a regular application to attract deemed possession under sec 13(4).
The court is of the view that the builder must be aware of the position and that is why they did not apply for permission for the 6th floor but commenced construction illegally. Only when they were asked to stop the construction by giving the stop-construction notice twice, then only the builder applied for the application. The court further added that the case cited above are not applicable and they cannot be held to protect the illegal additions beyond what was permitted by the Tezpur Development Authority.
The court further stated that the respondent has encroached the ground floor and has failed to keep aside the parking area and now a restaurant and reception has been constructed. Thus a multi-storied commercial building comprising of a shopping mall and a hotel cannot operate without a parking space. Moreover, the vertical construction beyond the 5th-floor limit is wholly unauthorized as construction was made in defiance of the injunction notice.
The court directed the builder to construct the parking where it was supposed to be. The extra floors constructed beyond the 5th-floor permit and the front staircase must be cleared. As illegal construction not only violates the Town planning Act and the Zoning Regulation but also impacts public interest, the court directed the authority for the demolition of the illegal structure for which the cost will be paid by the builder. The demolition work to be done within 8 weeks from the date of judgment.
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