Page No.# 1/11 GAHC010029592021 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : PIL/17/2021 ARINDAM DEB AND 3 ORS S/O LATE ANIL KUMAR DEB, R/O HOUSE NO-109, SHAHID HITESWAR BISWAS ROAD, AMBIKAPATTY, SILCHAR, DIST-CACHAR, ASSAM-788004 2: BISWAJIT DAS S/O LATE RATHINDRA CHANDRA DAS R/O SHIB BARI LANE VIBEKANANDA ROAD SILCHAR DIST-CACHAR ASSAM-788004 3: MRINAL KANTI SHOME S/O LATE MAKHAN LAL SHOME R/O LANE NO. 13 HOUSE NO.18 FIRST LINK ROAD SILCHAR DIST-CACHAR ASSAM-788006 4: AJOY KUMAR ROY S/O LATE AJIT KR. ROY R/O HOUSE NO. 3 KAMALA ROAD SILCHAR DIST-CACHAR ASSAM-78800 VERSUS THE STATE OF ASSAM AND 10 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, URBAN DEVELOPMENT DEPARTMENT, SACHIVALAYA, DISPUR, GUWAHATI-6 Page No.# 2/11 2:THE DIRECTOR MUNICIPAL ADMINISTRATION ASSAM DISPUR GUWAHATI-781006 3:THE JOINT SECRETARY TO THE GOVERNMENT OF ASSAM URBAN DEVELOPMENT DEPARTMENT DISPUR GUWAHATI-6 4:THE SILCHAR MUNICIPAL BOARD REPRESENTED BY EXECUTIVE OFFICER HAVING ITS OFFICE AT SADARGHAT ROAD SILCHAR DIST-CACHAR ASSAM PIN-788001 5:THE EXECUTIVE OFFCER SILCHAR MUNICIPAL BOARD SADARGHAT ROAD SILCHAR DIST-CACHAR ASSAM PIN-788001 6:THE DEPUTY COMMISSIONER CACHAR SILCHAR SADARGHAT SILCHAR-788001 7:THE ADDITIONAL DEPUTY COMMISSIONER CACHAR SILCHAR SADARGHAT SILCHAR-788001 8:THE DIRECTOR TOWN AND COUNTRY PLANNING ASSAM DISPUR GUWAHATI-781006 9:ASSAM PROGRESSIVE DEVELOPERS LIMITED REPRESENTED BY ITS MANAGING DIRECTOR SRI PARTHA SARATHI Page No.# 3/11 CHOUDHURY HAVING ITS REGISTERED OFFICE AT N.S. AVENUE SILCHAR-788005 10:PARTHA SARATHI CHOUDHURY S/O LATE PRAN GOPA CHOUDHURY R/O SHIVALIK PARK MEHERPUR P.O. AND P.S.-SILCHAR DIST-CACHAR ASSAM SILCHAR-788015 11:SILCHAR DEVELOPMENT AUTHORITY. SILCHAR For petitioner/appellant(s) : Mr. S. Borthakur, Advocate Ms. P. Borah, Advocate For respondent(s) : Mr. Manish Goswami, Sr. Advocate Mr. R. Singh, Advocate Mr. S. Dutta, Sr. Advocate Ms. K. Borah, Advocate Ms. R. B. Borah, GA, Assam – BEFORE – HON’BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI HON’BLE MR. JUSTICE SUMAN SHYAM 05.02.2025 (Vijay Bishnoi, CJ) 1. This PIL petition is filed by some of the residents of Silchar Town raising a grievance regarding the decision taken by the erstwhile Municipal Board (now Silchar Municipal Corporation) to lease out a portion of the Gandhibag Park area of Silchar town to the respondent No. 9, to develop an amusement park and to construct hotel as well as commercial complex. The process for leasing out the land of Gandhibag Park area to the respondent Page No.# 4/11 No. 9 started in the year 2017 and, ultimately, an agreement was executed between the erstwhile Silchar Municipal Board (hereinafter to be referred as “Municipal Board”) and the respondent No. 9 on 14.03.2019. 2. The petitioners have challenged the action of the Municipal Board principally on the ground that as per Section 63(2) of the Assam Municipal Act, 1956 (hereinafter to be referred as “Municipal Act”), no Board can lease out, exchange or dispose of any land vested in it under Section 62 except with the sanction of the State Government. It is contended on behalf of the petitioners that with the leasing out of the land of the park in question, the Municipal Board has virtually disposed of the said land to the respondent No. 9 without taking any sanction of the State Government, therefore, it is illegal. 3. The other ground raised by the petitioners to challenge the process of leasing out the land in question is that in the Final Master Plan for Silchar, published vide Notification dated 19.03.2005, the Gandhibag Park area is reserved for development of a small botanical garden and swimming pool. Therefore, the leasing out of the said park area to the respondent No. 9 for establishment of an amusement park and construction of hotel and commercial complex is in violation of the Master Plan. It is contended that without there being any amendment in the Final Master Plan by following the procedure laid down under the law, the use of the land cannot be changed. Other ancillary grounds, such as, environmental hazards and lack of green space for the citizens and children of Silchar Town have also been raised in this PIL petition. Learned counsel for the petitioners has also heavily placed reliance on an enquiry report prepared by the then District Commissioner, Silchar, wherein an opinion is expressed that the erstwhile Silchar Municipal Board has leased out Page No.# 5/11 the Gandhibag park area in favour of the respondent No. 9 without adhering to the regulations and norms and the same is also not strictly in accordance with law. 4. The Municipal Board and the respondent No. 9 have vehemently opposed the writ petition by filing affidavits-in-opposition justifying the action of the Municipal Board in leasing out the land of the Gandhibag park area for the purpose of development of amusement part, hotel and commercial complex. It is contended on behalf of the respondents that there is no illegality in the leasing out process and the same is perfectly in accordance with law. It is further contended on behalf of the Muncipal Board that for the purpose of generating revenue and for the purpose of carrying out other developmental activities, the land, which at present is of no use, is being leased out to the respondent No. 9 and, with the leasing out of the said land, no environmental hazards will take place, on the other hand, it will beautify the area and the greenery, which would be beneficial to the public of Silchar town. 5. We find that initially no response was filed on behalf of the State respondents and, after much prodding, the State has filed an affidavit on 28.11.2024, wherein it is mentioned that at the instance of the Government authority and the Deputy Commissioner, Silchar, an enquiry was conducted and in the report of the said enquiry, the Additional Deputy Commissioner, Silchar opined that the permission given by the Silchar Municipal Board for leasing out the land to the respondent No. 9 for establishment of amusement park, hotel and tourist complex was done by adopting questionable means. Consequently, the execution of the work carried out by the respondent No. 9 was put at halt. 6. It appears that against the said action of the administration, the Page No.# 6/11 respondent No. 9 preferred a writ petition, being WP(C) No. 1079/2020, before this Court and in that writ petition the State Government took a stand that though initially a restrain order had been passed, however, later on, on furnishing clarification by the concerned stakeholders, the prohibition order was revoked. The relevant portions of the affidavit filed on behalf of the respondent No. 1, i.e. Secretary to the Government of Assam, Department of Housing & Urban Affairs, in these proceedings are reproduced hereunder: "6. That the deponent begs to state that the Government, in consideration of the proposal of the Board, vide its letter bearing No. UDD(M)22/2010/202, dated 25.04.2019 (Annexure-8 of the PIL) conveyed that the Board is competent to take up any project for enhancement of revenue provided there is no transfer of ownership of the property. Thus, making it clear that the intention of the Government is to restrict transfer of the property of the Board. 7. That subsequently, after issuance of a work allotment order, a complaint was lodged against the development work being undertaken by the Silchar Municipal Board through the present petitioner in consequent to which an enquiry was conducted at the instance of the Government authority and the Deputy Commissioner, Cachar initiated an enquiry. The Additional Deputy Commissioner, Silchar stated that the permission given by the Silchar Municipal Board was under question as per the instruction of the Directorate of Municipal Administration, Assam and as such, the works were put on hold. Being aggrieved with such hold of the development work as ordered by the Deputy Commissioner and the Additional Deputy Commissioner, the developer filed a writ petition being WP(C) No.1079/2020 and during the pendency of the aforesaid writ petition, the State Government, after considering the Inquiry report dated 12.12.2019 of the Deputy Commissioner, Cachar indicating certain irregularities and discrepancies in the decision making process and in execution of the agreement as well as stoppage of work by the Deputy Commissioner and the Additional Deputy Commissioner, was pleased to direct the Executive Officer, Silchar Municpal Board vide letter No.UDD(M).128/2015/145, dated 12.01.2021, to enter into agreement following due procedure in terms of observation of the Deputy Commissioner, Cachar as contained in the letter dated 12.12.2019. By the aforesaid Government letter dated 12.01.2021, it was also instructed that no transfer of land at any cost be made to the developer without approval of the Government. It was also conveyed by this letter that the Government has decided that the work of Page No.# 7/11 development of Gandhibag Park is to be resumed with immediate effect. It may be mentioned here that the aforesaid instructions were issued with the approval of Departmental Minister. In compliance thereof, the Deputy Commissioner vide order No.CMJ.468/2029/Pt/3, dated 07.04.2021 revoked the earlier order dated 07.11.2019 directing stoppage of execution of work. After revocation of the said restraining order, the Silchar Municipal Board through its Executive Officer granted provisional NOC for the Amusement Park, Commercial & Hotel Building by its letter dated 30.07.2021. Considering the aforesaid facts, the Hon’ble Court was pleased to close the above mentioned writ petition being WP(C) No.1079/2020 with an observation made vide order dated 01.09.2021. 8. That since the State Government directed the Municipal Board to follow the due procedure of the Deputy Commissioner, Cachar by letter dated 12.12.2019 and make necessary amendments to the contract agreement, the State Government did not further deal into the matter as it pertains to the power of the Silchar Municipal Board. However, since the Hon’ble Court has specifically directed the State Government to bring on record its views, the State Government vide letter No.UDD(M).55/2024/98 dated, 22.11.2024 has now sought an urgent Report from the Deputy Commissioner, Cachar regarding the amendments made to the contract agreement with the petitioner vide letter dated 12.12.2019. Since, the Report is awaited and necessary records are currently not available in the Office of the Secretary, Department of Housing and Urban Affairs, Government of Assam, the answering deponent tenders unconditional apology before the Hon’ble Court and craves leave of the Hon’ble Court to allow the deponent to file a detailed affidavit bringing on record any subsequent development in the matter as and when the Report is received and the records and files pertaining to the matter is traced.” 7. From the above affidavit it is clear that the Government has already given a green signal to the project on the condition that the ownership of the land shall not be transferred to the respondent No. 9 and the same shall remain with the Municipal Board. The Municipal Board as well as the respondent No. 9 have also confirmed that there is no transfer of ownership of the land in question and even the petitioners have not disputed the said position by filing rejoinder affidavit. Under such circumstances, we are of the view that the aforesaid issue no longer survives for adjudication. Page No.# 8/11 However, in so far the issue of violation of the provisions of the Master Plan is concerned, the affidavit filed by the State Government is totally silent on this aspect. The State Government has also not responded to the allegation of the petitioners regarding environmental hazards that may take place with the setting up of the amusement park, hotel and the commercial complex in the Gandhibag park area. 8. Learned counsel for the petitioners has reiterated that the land, which is earmarked for the purpose of botanical garden and swimming pool, cannot be leased out to a private entity for another purpose, such as construction of amusement park, commercial complex, hotel, etc. It is contended that without amending the Master Plan in accordance with law, it is not permissible for a local body to lease out the land to a private entity. Learned counsel has further submitted that establishment of the amusement park, hotel and tourist complex in the Gandhibag park area may lead to environmental hazards, which cannot be ignored and, therefore, the area which at present is being used as a green space for the citizens of Silchar town, cannot be allowed to be used for commercial purpose. 9. Countering the submissions advanced by the learned counsel for the petitioners, Mr. Manish Goswami, learned senior counsel for the respondent No. 9 has vehemently submitted that with the establishment of the amusement park on the proposed area, there would be no violation of the Master Plan. Learned counsel has pointed out that in the Master Plan it is nowhere mentioned that the land of the Gandhibag park is reserved only for botanical garden and swimming pool. On the other hand, it is proposed that the Gandhibag park area shall be developed as a small botanical garden and swimming pool. It is submitted that such a proposal cannot be termed as a reservation of the area Page No.# 9/11 for the specific purpose, i.e. for botanical garden and swimming pool only. It is further submitted that even though it is assumed that the land is reserved for a small botanical garden and swimming pool, then also, with the setting up of the amusement park, hotel and commercial complex, the nature of the land is not going to be changed. Learned counsel has pointed out that in the Master Plan, establishment of zones have clearly been classified and the Gandhibag park area has been classified as Public and Semi-public zone. Learned counsel has further submitted that in the Master Plan itself it is specifically mentioned that certain activities are prohibited in the Public and Semi-public zone. Referring to Clause 6.2.6 of the “Zoning Regulations For Silchar Master Plan Area” of the Revised Final Master Plan for Silchar, published vide Gazette Notification dated 19.03.2005, it is submitted that amusement park, commercial complex and hotel do not fall in any of the prohibitions as mentioned in the Master Plan. It is further submitted that some prohibitions are specified also in respect of the Recreational and Open Space Zone, however, amusement park, hotel and tourist complex do not come within that category. Learned counsel has further submitted that very vague allegations have been levelled in the writ petition regarding environmental hazards without providing any proof or material in support of such allegations and without referring to any provision of law in this regard. It is further submitted that the respondent No. 9 is complying with all the environment law and regulations which are in vogue. Learned counsel has, therefore, submitted that, as a matter of fact, this writ petition lacks merit and the same is, therefore, liable to be dismissed. 10. Having heard the learned counsel for the parties and after going through the material available on record, we find that in view of the clarification given by the Municipal Board as well as the State Government that the ownership of land Page No.# 10/11 of the Gandhibag park area is not going to be transferred to the respondent No. 9, the principal challenge of the petitioners regarding the transfer of ownership of the land of Gandhibag park area in favour of the respondent No. 9, in violation of Section 63(2) of the Municipal Act, is not liable to be sustained. In so far the allegation of violation of the Master Plan is concerned, we prima facie find that there is merit in the contention raised by the learned counsel for the respondent No. 9 that with the establishment of the amusement park, hotel and the tourist complex the nature of the land, which falls within the Public and Semi-public zone, is not going to be changed. However, we are of the opinion that ultimately it is for the State Government to take a call on the issue whether establishment of the proposed amusement park and construction of hotel and commercial complex in the area concerned will violate the provisions of the Master Plan, or not. Similarly, the concern raised about the environmental issues associated with the establishment of the amusement park, hotel and commercial complex in the Gandhibag park area, is also to be looked into by the Government, in the light of the environment laws and regulations which are in vogue. 11. In such circumstances, we dispose of this writ petition with the direction to the Chief Secretary to the Government of Assam to constitute a three- member committee, to be headed by an officer not below the rank of Additional Chief Secretary to the Government of Assam, to examine the aspects regarding violation of the Master Plan as well as environmental issues, if any, that is likely to arise with the establishment of the amusement park and construction of hotel and tourist complex over the land, which is being leased out to the respondent No. 9 by the Municipal Board. The said three-member committee shall conclude the exercise within a period of 8 (eight) weeks from the date of receipt of a Page No.# 11/11 certified copy of this order and submit its report, after providing proper opportunity of hearing to the parties to the writ petition and shall also communicate its decision to them immediately after conclusion of the proceeding. Subject to the outcome of the above process, further steps may be initiated in the matter of implementing the project in question. This PIL petition stands disposed of with the above observations and directions. JUDGE CHIEF JUSTICE Comparing Assistant