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Form No. (J) 2

HEADING OF JUDGMENT IN APPEAL

District: Kamrup (M)

IN THE COURT OF CIVIL JUDGE(Sr. Div) NO.3, KAMRUP(M),

GUWAHATI

Present: Sri Shakti Sharma, AJS, M.COM, L.L.B

Civil Judge (Sr. Div) No.3,

Kamrup (M), Guwahati,

4th September, 2019

Title Appeal No. 113/2013

1.) Sri Sanjay Madani,

S/O Lt. Khemchand Sindhi,
R/O Flat No. 505, Golden Residency,
Chatribari, Guwahati-8.
2.) Sri Rajesh Lunawat,
S/O Sri Lunkaram Lunawat.
3.) Smt. Deepika Jain,
4.) W/O Sri Rajesh Lunawat,
R/O Flat No. 502, Golden Residency,
Chatribari, Guwahati-8.
5.) Sri Madusudan Baheti
S/O Sri Tarachand Baheti,
R/O Flat No. 504, Golden Residency,
Chatribari, Guwahati-8.
6.) Sri Sagar Sancheti,
S/O Sri Vijay Singh Sancheti
R/O Flat No. 501, Golden Residency,
Chatribari, Guwahati-8.
7.) Sri Bimal Bihani,
S/O Sri Fateh Chand Behani.
8.) Smt. Ritu Bihani,
W/O Sri Bimal Behani,
No.6 and 7 are resident of Flat No. 503, Golden Residency,
Chatribari, Guwahati-8.
.......................... Appellants
-Versus-

1.) The Guwahati Metropolitan Development Authority,

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Represented by its Chief Executive Officer.

2.) The Town Planner, G.M.D.A

No.1,2 & 3 are having its office at Statefed Building, Bhangagarh,

Guwahati-5.

3.) The Chief Executive Officer, G.M.D.A.

No.1,2 & 3 are having its office at Statfed Building, Bhangagarh,

Guwahati-5.

4.) Smt. Sanjukta Borgohain,

W/O Sri Utpal Borgohain,

R/O Chatribari, Bilpar, Old Fire Brigade Lane,

Guwahati-8.

5.) Sri Shyam Sundar Sipani @ Shyam Sipani.

S/O Shree Chand Sipani,

R/O Kumarpara, Guwahati-1, Assam, carrying on business in the name

and style of his proprietary concern M/S Shyamji Constructions from is
office situated at Parmeshwari Building, 4th Floor, Chatribari,
Guwahati-8.

........................... Respondents

This appeal coming on for final hearing on 22.08.2019 in presence of:

N.N Jha, A.K Rai, T.R Ray, Sanjib Dey, ld. Counsel , .............for the
Appellant
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P.K Deka, R. Sarma, Hrishikesh Deka,M. Hussain, Ld. Counsel............... for

the respondent.

And having stood for consideration to this day of 4 th September 2019, this
Court delivers the following judgment:

JUDGMENT

1. This Appeal under Section 96 read with section 151 of the C.P.C
has been preferred by the Appellant/Plaintiff against the Judgment and
order dated 18.06.2013 passed by Ld. Munsiff No. 1, Kamrup(M),
Guwahati in Title Suit No. 246/2005.
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2. On receipt of the appeal memo, notice was issued to the

Respondent and case record of TS No. 246/2005 was called for.
Respondent appeared through his Ld. engaged counsel and has contested
the appeal.

3. I have heard the Ld. Advocate for both the parties, gone through
the Memorandum of Appeal and the case record of TS No. 246/2005.

4. The case of the plaintiff in brief is that the plaintiff is builder/

promoter is carrying on his building construction business in the name and
style of his proprietary concern M/S SHYAM CONSTRUCTION from his office
situated at Parameswari Building,4th Floor, Chatribari, Guwahati-1, Assam.

That, the plaintiff was authorized by the landowners to develop the

land by raising/ constructing RCC building thereon, subject to the terms
and conditions as mentioned in the said two Registered Deed No.
10134/03 and 6388/03. The plaintiff on 03.03. 2004 submitted an
application in the office of the Guwahati Municipal Corporation hereinafter
called “ Corporation” for obtaining permission/ no objection certificate
hereinafter called “NOC”, for construction of one RCC building consisting
of Ground + 5 stories on the abovementioned plot of land. On 31.05.2004
the corporation vide letter No. GPL/28/2/04/15 dated 31.05.2004 directed
the plaintiff to submit revised plans with certain modifications and the
plaintiff accordingly vide his forwarding letter dated 05.06.2004 submitted
three copies of Revised plans with modifications and the Corporation
issued no objection Certificate in favour of plaintiff’s proprietary concern
M/S SHYAMJI CONSTRUCTIONS, for construction of building from Ground
Floor to Forth Floor vide Memo No. GPL/28/2/04/23/541 dated 06.10.2004.
Thereafter the plaintiff commenced construction of building.

That, the plaintiff further pleaded that on 11.10.2004 the plaintiff

vide his letter dated 08.10.2004, applied for extension of Fifth Floor and
the said letter was duly received by the corporation but in spite of that the
corporation did not communication anything to the plaintiff as to the
permission or rejection of plaintiff’s application/ letter and hence the
plaintiff presumed it to be granted.
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That, in view of above said state of affairs the plaintiff completed

the construction of his building from ground to 5 th floor. The construction
of the building was completed in March, 2005 itself, and the various flats
of the building were also handed over/ delivered to the respective allotte/
purchaser of the flats/ apartments. The enforcement Officer of the
corporation vide letter No. GEF/203/2004/168 dated 01.04.2005, directed
the plaintiff submit the land documents, NOC and approved plan of the
building, last municipal tax paid receipts, assessment sheets of each
holdings etc. before him and consequent upon that the plaintiff himself
personally submitted his necessary relevant documents support of lawful
construction of his building. The building of the plaintiff was duly assessed
by the officials of the corporation in May 2005 in the form of 12 holdings
in the names of the respective purchasers of the flats and after collection
of the municipal taxes in respect of the said holdings, municipal tax
payment receipts were issued by officials of corporation in the names of
respect flat owners.

That the officials/ Engineers of the corporation once again inspected

the plaintiff’s building on 17/06/2005 and thereafter on 03.08.2005 the
plaintiff was served with a notice bearing Memo No.
GPL/28/2/2004/29/143 dated 13.08.2005 issued by the Corporation under
section 337 of the GMC Act wherein the plaintiff was directed to
discontinue the undertaken works of erection or re- erection of building of
G + 4th Floor and to show cause within 30 days as to why unauthorized
construction/ deviations should not be demolished.

That, apprehending demolition of his building, the plaintiff instituted

one T.S against the Corporation and Commissioner of the Corporation,
which was duly registered as T.S No. 85/2005 and is waiting disposal.
Thereafter Notice was issued by the defendant No.1 under the signature
of defendant No.2 vide letter No. GMDA/UC/34/05/10 dated 28-04-2005
and on receipt of the said notice the plaintiff’s vide its reply dated
04.05.05 prayed before the defendants to furnish a copy of the said
complaint, which was the source of the issuance of the said notice. The
said reply/ letter was duly received by the defendant on 04.05.05 itself,
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but in spite of that the defendants did not furnish any copy of the alleged
complaint allegedly received against the plaintiff.

That, the defendant No.1 under the signature of the defendant

No.2 issue another notice bearing memo No. GMDA/UC/34/05/2 dated
31.05.05 asking the plaintiff to submit the NOC and drawings etc. and to
stop construction with immediate effect.

That, all of a sudden the plaintiff on 29.11.05 has been served with
an order No. GMDA/UC/34/2005/46 dated 22.11.05 issued by the
defendant No.1 and signed by the defendant No.3, on 21.11.05 alleging
that the plaintiff has failed to submit NOC, drawing etc. and has also filed
to convince the authority in support of his 5 th Floor during personal
hearing and as such plaintiff has been directed to demolish the alleged
unauthorized part of the building, i.e., 5 th Floor allegedly constructed in
violation of GMDA Act, Building Bye Laws, and Zoning Regulations, within
five days from receipt of the order, failing which the defendants will be
free to proceed with demolition of the said alleged unauthorized portion of
the building without any further intimation to the plaintiff at plaintiff’s
costs and expenses.

Hence, the present suit was filed by the plaintiff wherein plaintiff
prayed for declaration that the notices issued by the defendant are illegal,
arbitrary, malafide, unauthorized and without jurisdiction and are issued
without application of mind and are also violative of principles of natural
justice and are liable to be recalled, alterative set aside and also prayed
for other reliefs.

5. On receipt of summon, the defendant No.1,2 and 3 in their written

statement submitted that plaintiff applied for extension of the 5 th Floor. As
no objection was not issued by the Corporation of the plaintiff cannot
claim and presume that no objection for construction of the 5 th Floor was
duly accorded. The answering defendants state that the officials of the
corporation detected that the plaintiff constructed the 5 th Floor of the
building without permission. So, the Corporation issued the notice dated
03.05.05.
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The answering defendants stated that the plaintiff in his

explanations stated so many things but could not produce the permission
of the 5th Floor well as valid reason deviation of plan. Since the
construction for the 5th Floor was unauthorized, hence notice was served
as per provisions of GMDA Act. The defendants also pleaded that
defendant No.1 has full authority as per provisions of against any
unauthorized construction within the Guwahati Metropolitan area and the
GMC area falling within the Guwahati Metropolitan area.

The defendant No.4 who was impleaded during the pendency of the
suit filed written statement cum counter claim in the suit wherein it is
pleaded that part from such illegal construction of the 5 th Floor the plaintiff
also realised the boundary over the said plot of land upto 13ft high
causing great nuisance to the present defendant. After sell of the various
flats constructed by the plaintiff to various purchasers they used to throw
their daily waste materials like bottles, plastics, napkins, rotten food,
stuffs etc. through their windows of their flats in the court yard as well as
on the roof of the house of the present defendant.

That, the nuisance has at present become totally ubearable and the
counter claimant is living with his family on the house, so it has become
necessary on the part of the counter claimant to file this counter claim
seeking for a mandatory injunction directing the plaintiff as the builder of
the said builder under building permission No. GPL/28/2/04/23/54 issued
by the GMC to raise steel net on the window, ventilators, balconies facing
the house of the counter claimant along with a further direction to reduce
the height of the boundary wall on the western side of the schedule- X
property to a height of 5 ft.

6. On pleadings of the parties, both the sides went on trial with the
following issues:

1.) Whether the suit is maintainable?

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2.) Whether the Notice dated 28-04-2005 No. GMDA/UC/34/05/10

and GMDA/UC/34/05/12 dated 31-05-2005 and order No.
GMDA/UC/34/2005/46 dated 22-11-2005 are illegal?

3.) whether the construction work carried out by the plaintiff on the
5th Floor of the schedule property of the plaint is illegal and unauthorized
and liable to be demolished?

4.) Whether the boundary raised wall by the plaintiff is illegal and
liable to be demolished?

5.) To what reliefs the parties are entitled to under the law?

7. During trial, both the sides adduced evidences in support of their

case.The learned Trial Court after hearing learned counsel of both side and
after appreciating evidence available on record was pleased to dismiss
this suit.

8. Being highly aggrieved by the above judgment and decree of Trial

Court dismissing the suit of the plaintiff, the appellant has preferred this
instant appeal on the following amongst other grounds:

(i) For that the judgment and decree dated 28-06-13 is bad in law as
well as son facts and as such the same is liable to be set aside.

(ii) For that the Ld. Trial court erred in law and fact in failing to consider
that the G.M.D.A had not issued any notices to the appellants and thus
violated the mandatory provisions of section 88 of the said Act, as such
the demolition order passed by the G.M.D.A was not in good faith and
same is illegal, actuated with malice, malafide, nullity, without jurisdiction.

(iii) For that the Ld. Trial Court erred in law and fact in failing to consider
that non-services of the notices of show- cause and demolition order by
the G.M.D.A to the plaintiffs as required substantial injustice to the
plaintiffs, as such the entire proceeding initiated by the G.M.D.A against
the respondent No.5/ builder are illegal, without jurisdiction, nullity in the
eye of law, void and not binding on the plaintiffs.
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(iv) For that the Ld. Trial court erred in law and fact in failing to consider
that the clause No. 14 of the said bye-laws provides that should the
authority determine at any stage that the construction is not proceeding
according to the sanctioned plan or is in violation of any of the provisions
of these bye-laws. It shall notify the permit holder; and all further
construction shall be stopped until correction has been effected and
approved by the Authority. If the permit holder fails to comply with the
requirements at any stage of construction the Authority is empowered to
cancel the building permit issued.

(v) For that the Ld. Trial Court erred in law and fact in failing to consider
that once a permission has been granted by the GMC or GMDA only the
authority who grants the building permission can take further action for
the unauthorized construction, but in the present case the building
permission was granted by the GMC and only it can take action against
the builder and occupiers and the GMDA cannot take any action against
the builder.

(v) For that the Ld. Trial Court failed to appreciate the real dispute in
controversy and as such reached to an erroneous conclusion thereby
causing serious miscarriage of justice, and as such the same is liable to be
set aside and quashed.

(vi) For that the Ld. Munsiff committed gross illegalities and irregularities
in failing to consider that where the Executive have acted ultra vires
exceeding its power, civil suit will be maintainable without serving prior
notice.

(vii) For that the Ld. Munsiff failed to consider that section 101 of the
G.M.D.A provides that “ no order in exercise of any power conferred by or
under this Act shall called in question in any court except as provided in
this “Act” but in the present case the GMDA had no power under the Bye-
Laws to take action against the builder or against the petitioners, as such
the prohibition U/S 95 and 101 of the GMDA Act will not come into force.
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(viii) For that the Ld. Trial Court failed to consider that the Town Planning
Act, Zonning Regulation and the Bye Laws cannot impose unreasonable
restrictions on the properties.

(ix) For that the Ld. Trial Court erred in law and facts in failing to consider
that the height of the boundary wall is measured from road level and not
from footpath as provided under Bye Laws No. 40 of G.M.C and as such
the Counter Claim is liable to be set aside.

9. From the grounds of appeal and the pleadings of parties following

point for determination emerges in this appeal is:-

10. Points for determination in this appeal is:

1.) Whether the appeal is maintainable?

2.) Whether the suit is maintainable?

3.) Whether the plaintiff was justified in constructing 5 th floor of

the building merely on presumption of deemed permission for
failure of GMC to communicate and to dispose of their petition
dated 08.10.2004 for extension of permission for construction of
5th floor within statutory period of 60 days?

4.) Whether the appellants can claim any right against GMDA for
preventing them from giving affect to the disputed notice dated
28.04.2005 and 31.05.2005 as well as disputed order dated
22.11.2005 by purchasing the flats on the 5 th floor of the suit
building on mere assurance of respondent no. 5/plaintiff to get
approval for 5th floor construction?
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5.) Whether the boundary wall raise by plaintiff is illegal and

liable to be demolished?

11. I have heard the argument forwarded by learned counsels of both

the sides. Also perused the impugned judgment and other materials
available on record to arrive at a decision on points.

12. Decision & Reasons thereof:

Point No.1 :

Whether the appeal is maintainable?

Perusal of appeal memo vis-a-vis plaint and W.S. filed in the

suit reveals that the appellants were not parties in the main suit
either in the capacity of plaintiff or defendant.

Now, we know that the judgment delivered by the Munsiff is

on the basis of pleadings and evidence adduced by the parties in
the suit. So, the appellant who do not have any pleadings nor any
evidence before the trial court in my considered opinion cannot
assail the impugned judgment and decree passed by Ld. Munsiff,
which is delivered without taking into account their pleadings. That,
the appellant in my considered opinion has no locus- standi to assail
the impugned judgment and decree passed by Ld. Munsiff, when it
is a settled a law that appeal is a continuation of suit.
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That apart, if we perused the memo of appeal meticulously, we

will find that appellants are claiming their rights to appeal through
respondent no. 5 on the basis of sale agreement entered into
between them and respondent no. 5 in respect of flat on the 5 th
floor, with a knowledge that the permission for construction of 5th
floor is pending, however, on the assurance of respondent no. 5 to
get the permission at earliest.

Now, if that be a position, then I am of the considered opinion

that the appellant do not get any right to sue through respondent
no. 5 on the basis of aforesaid sale agreement which is not
enforceable being contingent upon the permission to be given by
the competent authority, which may or may not happen and which
is also not enforceable being forbidden by law.

So, under aforesaid circumstances, I am of the considered

opinion that the appeal of the appellant is hit by Section 34 of
Specific Relief Act read with Section 23 of Contract Act R/W Section
32 of Contract Act R/W Section 2(G) and hence not maintainable in
the eye of law.

Accordingly, this issued is decided negative and against the

appellant

Point No.2 :

Whether the suit is maintainable?

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The pleadings of the parties reveals that plaintiff is claiming

the construction of 5th floor of suit building as lawful on the basis of
presume and deemed permission of GMC for their failure to dispose
of the application of plaintiff for extension of permission for
construction of 5th floor within the statutory period of 60 days.

So, from the aforesaid pleading of the plaintiff what surface is

that they are trying to justify their act by blaming G.M.C and if that
be a position then, I am of the considered opinion that the presence
of GMC will be necessary for the proper constitution of the suit and
to decide the dispute effectually.

But, as the plaintiff did not made GMC party to the suit, so,
the suit of the plaintiff, in my considered opinion, is bad for non
joinder of necessary party.

Hence, under above facts and circumstances, I am of the

considered opinion that suit of the plaintiff is not maintainable in
the eye of law.

Accordingly, the point is decided negative.

Point No.3 :
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Whether the plaintiff was justified in constructing 5th floor of

the building merely on presumption of deemed permission
for failure of GMC to communicate and to dispose of their
petition dated 08.10.2004 for extension of permission for
construction of 5th floor within statutory period of 60 days?

To answer this question let us first reproduce the relevant

provision of law relied upon by the appellant to support their
contention. Section 328 of GMC Act, 1971 which is the relevant
provision states that -

“It is required that every person who intends to erect or re-

erect a building shall submit to the corporation an application in
writing for approval of the site, together with a site plan of the Act,
and documents of title and in case of land which is of the
Government or the Corporation, a certified copy of the documents
authorizing him to occupy the land and if so required by the
Commissioner, the original documents of documents.

It is also mentioned that an application shall be disposed of

within 60 days from date of receipt.”

From the aforesaid provision of law, what transpires is that the

above provision nowhere gave any scope for presuming that the
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application not dispose of within 60 days shall be presumed to be

allowed. The time period mandate by the law in my considered
opinion is just to expedite the matter and nothing else. Further, it
is settled law that one cannot import anything which is not meant
by express provision of the law.

The Hon’ble Apex Court in the case of Harbajan Singh -Vs- Press
Council of India, AIR 2002 SC 1351 held that, -

“The golden rule of construction is to read the statutory

language, grammatically and terminologically, in the ordinary and
primary sense which it bears in its context, without omission or
addition.”

So, in view of aforesaid settled law, I am of the considered

opinion that the plaintiff was not justified in constructing 5 th floor of
the building merely on presumption of deemed permission for
failure of GMC to communicate and to dispose of their petition
dated 08.10.2004 for extension of permission for construction of 5 th
floor within statutory period of 60 days.

Accordingly, the point is decided in negative.

Point No.4 :
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Whether the appellants can claim any right against GMDA

for preventing them from giving affect to the disputed
notice dated 28.04.2005 and 31.05.2005 as well as disputed
order dated 22.11.2005 by purchasing the flats on the 5 th
floor of the suit building on mere assurance of respondent
no. 5/plaintiff to get approval for 5th floor construction?

As discussed in point no. 1 that appellants had purchased flats

in the 5th floor with the knowledge that there was no permission
for construction of aforesaid flat on 5 th floor in favour of the
respondent no. 5, but on mere assurance of respondent no. 5 to get
the permission in future, they have purchased the same. So, I am of
the considered opinion that the appellant for their own negligence
and wrong against the law cannot prevent GMDA from giving effect
to the aforesaid disputed notice and order. Because, it is a settled
law that no right can arise out of a wrong (JUS EX Injuria Non
Oritur) and wrongdoer should not be enable by the law to take any
advantage from his action (Commodum Ex Injuria Sua Nemo
Habere Debet).

Both the aforesaid principle work on a logic that when a person

is doing a wrong act he need not be helped by the state in getting
any sought of relief as this would essentially be against the public
policy. In other word, the agreement of appellants with respondent
no. 5 being an unlawful agreement cannot give any right against
the authority established by the law discharging statutory function.
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Accordingly, the point is decided in negative.

Point No.5 :

Whether the boundary wall raise by plaintiff is illegal and

liable to be demolished?

Let us first reproduce the observation made by Ld. Munsiff in

respect of this point to find out as to whether the observation made
is sustainable in law and fact.

The Ld. Munsiff while deciding instant point for determination,

which is issue no. 4 in her suit observed that, -

“PW1 Shri Shyam Sundar Sipani during his cross examination

deposed that the GMC had instructed him to reduce the height of
both wall, as such he had not touched the existing walls. He could
not say whether the western wall obstructs the free air and light or
not.

So far as the height of the compound wall of building of the

plaintif is concerned, under Section 45 of the GMDA building bye
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laws, the compound wall is constructed shall not be more than 5

feet 6 inches above the level of the foot path or side wall.

So, if the boundary wall constructed by the plaintif is above 5

feet 6 inches above the level of the foot path or side wall, the same
is constructed in violation of the norms set up.

The plaintif in his reply to the counter claim did not deny that
the height of the compound wall is more than 5 feet 6 inches.

Hence, it is held that the boundary raised wall by the plaintif is

illegal and the portion of the wall which is above 5 feet 6 inches
above the level of the foot path or side wall liable to be
demolished.”

In aforesaid observation of Ld. Munsiff I do not find any

illegality to interfere with her findings and I do concur to the view
taken by the Ld. Munsiff in respect of this issue as it is a settled law
that fact not specifically denied is deemed to be admitted.

Accordingly, this issue decided affirmative.

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In above backdrop, I am of the considered opinion that Ld.

Munsiff has rightly dismissed the suit and rightly allow the counter
claim partly.

Accordingly, the judgment and Order passed by the learned Munsiff

No. 1 on 18.06.2013 in TS No.246/2013 is hereby upheld and
consequently appeal is dismissed with cost.

Let a decree be prepared accordingly within 14 days.

Send back the case record of TS No.246 /2013 to the Court of Ld.
Munsiff No. 1, Kamrup(M), Guwahati with a copy of this judgment and
decree.

Given under my hand and seal of this Court on this 4 th September,

2019 at Kamrup (M), Guwahati.

Civil Judge No.3,

Kamrup (M),
Guwahati.
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