B.K. Sharma, J.@mdashThe petitioner No. 1 a registered society under Societies Registration Act, 1860 and the petitioner No. 2 the owner of the building in question in which the college of the petitioner No. 1 is located are aggrieved by the decision of the authority, by which the petitioner No. 1 has been directed to vacate the educational institution from the building.
2. Aryabhatta Science Society is managing the Aryabhatta Junior Science College located in the building constructed by the petitioner No. 2. The petitioner No. 2 by her application dated 17.8.1999 had approached the Respondent Authority to accord permission for construction of a building of Ground Floor, 1st Floor and 2nd Floor over her plot of land situated near G.S. Road, Guwahati. The authority approved the building plan and accordingly the petitioner No. 2 was issued with the no objection certificate towards construction of the building. The building was constructed with the aid and assistance of the petitioner No. 1. On completion of the construction a Deed of Gift No. 7380/2001 was executed by which, the petitioner No. 2 donated the said land and building in favour of the petitioner No. 1. Since then, the petitioner No. 1 has been running the college.
3. The college was granted temporary recognition by the Assam Higher Secondary Education Council by its order dated 7.4.2003. Such recognition has been granted upon inspection of the infrastructures of the college. The Council has also notified the college as Examination Centre and the examinations are being held in the college from 2004.
4. By Annexure-6 notice dated 8.6.2006, the authority directed the college authority to stop unapproved construction in respect of 3rd and 4th floor of the building. In response to the notice, the petitioner submitted its reply. Thereafter, another notice dated 30.6.2006 (Annexure-8) was issued, interalia contending that the building had been used as college building instead of commercial building as approved earlier. The notice was followed by Annexure-9 notice dated 11.7.2006 to the same effect. As regards the unauthorized construction of the floors, the petitioner was directed to demolish the same.
5. Pursuant to the said notices, the building was partly demolished (upper two floors). Thereafter by Annexure-11 notice dated 10.10.2007, the petitioner No. 2 was directed to vacate the unauthorized use of the college on remaining floors. It was at that stage, the writ petition was filed. According to the petitioners, since the authority has already carried out the operation of demolition in respect of the floors in question, there is no further question of shifting of the college from the building. It is their contention that the building plan having clearly indicated the purpose, the authority cannot now threaten the petitioners of ceiling the building in the event of failure to shift the college. It has been contended that the permission for commercial purpose also includes educational institution purpose.
6. The respondents have filed their affidavit-in-opposition denying the contentions raised in the writ petition. According to them the permission for commercial purpose and educational purpose are different inasmuch as the criteria of building permission for both the categories are different as provided in the Building Bye Laws. It has been stated in the affidavit that the petitioners have contravened the building bye laws in making use of the building for the purpose other than the one for which the building permission was granted. As regards the unauthorized construction, it has been contended that the first show cause notice was issued primarily for (a) unauthorized construction of 3rd and 4th floors; (b) construction of staircase on the front set-back and (c) cantilever projection over all set-backs.
7. I have heard Mr. A. M. Mazumdar, learned Sr. Counsel assisted by Mr. N. N. Jha, learned Counsel for the petitioners as well as Mrs. M. Hazarika, learned Sr. Counsel assisted by Ms. S. Senapati, learned Counsel representing the Respondent Authority. I have also heard Ms. R. Chakraborty, learned State Counsel for the respondent No. 1. While Mr. Mazumdar, learned Sr. Counsel for the petitioner upon a reference to Section 2(7) of the Guwahati Metropolitan Development Authority Act, 1985 submitted that "commercial purpose" would also include educational institutions, Mrs. M. Hazarika, learned Sr. Counsel for the Authority upon a reference to the Building Bye Laws for Guwahati Metropolitan Area, 1998 submitted that "commercial purpose" does not include "educational purpose".
8. I have considered the submissions made by the learned Counsel for the parties and the materials on record. The petitioner No. 2 was granted the no-objection certificate u/s 25 of the Act for construction of RCC building for commercial purpose. Such permission was accorded by Annexure-2 letter dated 14.2.2000. In the said letter there is mention of cancellation of the earlier building plan submitted by the petitioners. Earlier building plan was rejected by letter dated 15.12.1999 on the ground that there is no motorable approach road as per required width for high-rise building. In the building plan, it was clearly indicated that the construction would be for a Junior Science College. The rejection was not on the ground of not conforming to the requirements of the criteria for college building.
9. After the aforesaid rejection, the petitioner submitted revised building plan, indicating use of the floors and the rooms for office/tutorial home. However, the proposed building was indicated as commercial building. Permission was granted for construction of Ground, 1st and 2nd floors and the consequence of construction of further two floors i.e. 3rd and 4th floor has been noticed above. The said unauthorized floors have already been demolished and presently the building consists of the remaining floors. The present controversy is only to the extent of justifiability or otherwise of making use of the building for running an educational institution in view of the stand of the authority that the permission was accorded only for commercial purpose.
10. Section 2(7) of the Act reads as follows:
Commerce ''means the carrying of any trade, business or profession, sale or exchange of goods of any type whatsoever, and includes the running of, with a view of making profit, hospitals, nursing homes, infirmaries, educational institutions and also hotels, restaurants, boarding houses not attached to any educational institution and sarais; and the expression "commercial" shall be construed accordingly.
11. Going by the said definition, commercial purpose may also include an educational institution. However, the Building Bye Laws of the authority provide different specifications for different types of buildings. While according permission to the petitioner for construction of the building, the purpose was indicated as "commercial purpose". There is nothing on record to show that the petitioner was asked to specify as to for what specific purpose the building would be constructed and used. As indicated above, the building plan clearly indicated that the floors/rooms would be used for office/tutorial home. Thus, there was indication that the building might be used for educational purpose. The earlier building plan was not approved not for any other reason, but only on the ground of the approach road being not wide enough. However, eventually the building permission was accorded for commercial purpose, which includes educational institution.
12. The impugned notice to the petitioners is not on the ground of the building not conforming to the specifications of college building, but only on the ground that the building is being used for the purpose (college purpose) other than the purpose (commercial purpose), for which the permission was granted. As per the aforesaid definition, commercial purpose also includes running of educational institution. There is nothing on record to show that the Authority ever asked for any clarification from the petitioner as to the specific purpose for which the building would be used. "Commercial purpose" apart from commercial activities as is understood in the common parlance is also inclusive of educational institution as per the aforesaid definition in the Act. As noticed above, the impugned letter dated 10.10.2007, by which the petitioners have been asked to shift the college is not on the basis of a findings arrived at that the college building does not conform to the requirements and specifications prescribed in the Building Bye Laws. Only ground assigned is that the building is being used for college as against the permission granted for commercial purpose.
13. In view of the above, I am of the considered opinion that the matter needs fresh consideration of the Authority consistently with the observations made above. Consequently, the writ petition is disposed of with a direction to the respondent Authority to re-examine the matter in the light of the discussions made above. Facilitating the fresh decision in the matter, the impugned letter dated 10.10.2007 (Annexure-11) stands set aside and quashed. Before passing the fresh order, the petitioner shall be provided with reasonable opportunity of being heard. Writ petition is allowed to the extent indicated above leaving to parties to bear their own costs.
