The Gauhati High Court has underscored the importance of exhausting statutory remedies before approaching constitutional courts, dismissing a writ petition challenging a demolition order for unauthorised construction. The Court directed the petitioners to file an appeal before the designated Appellate Authority under the Guwahati Metropolitan Development Authority Act, 1985, reserving their right to seek condonation of delay. This judgment reinforces the principle that alternative remedies must be pursued before invoking Article 226 of the Constitution.
Background & Facts
The Dispute
The petitioners - Bimal Baishya and four others - are residents of Dharapur, Guwahati, within the Guwahati Metropolitan Area (GMA). They constructed a brick boundary wall and a house without obtaining the requisite planning permit from the Guwahati Metropolitan Development Authority (GMDA). The construction was alleged to violate the Building Bye-Laws and Sections 24 and 25 of the GMDA Act, 1985.
Key Facts
- The GMDA issued a show cause notice dated 02.07.2025 under Section 88 of the GMDA Act, directing the petitioners to stop unauthorised construction and explain why it should not be demolished.
- The petitioners submitted a reply on 11.07.2025, but the GMDA observed that no planning permit was furnished.
- A hearing was scheduled for 06.08.2025, following which the GMDA passed Order No. eCF No. 662954/24 dated 19.11.2025, directing demolition of the unauthorised construction.
- The petitioners did not challenge the 19.11.2025 order but instead assailed a consequential order dated 18.06.2026, which scheduled the demolition for 06.07.2026.
Procedural History
- 02.07.2025: GMDA issues show cause notice under Section 88 GMDA Act.
- 11.07.2025: Petitioners submit reply.
- 06.08.2025: Hearing scheduled.
- 19.11.2025: GMDA passes demolition order (Order No. eCF No. 662954/24).
- 18.06.2026: GMDA issues consequential order fixing demolition date (impugned order).
- 26.06.2026: Writ petition (WP(C)/3459/2026) filed before Gauhati High Court.
Relief Sought
The petitioners sought quashing of the 18.06.2026 order and a stay on the demolition scheduled for 06.07.2026. They did not challenge the original 19.11.2025 order.
The Legal Issue
The central question was whether a writ petition under Article 226 of the Constitution is maintainable when the petitioners had not exhausted the statutory remedy of appeal under the GMDA Act, 1985, against the original demolition order.
Arguments Presented
For the Petitioners
- Mr. A.K. Azad, learned counsel for the petitioners, argued that the 18.06.2026 order was arbitrary and deserved interference under Article 226.
- He submitted that the petitioners intended to avail the statutory remedy of appeal under the GMDA Act but sought the Court’s intervention to prevent immediate demolition.
For the Respondents
- Mr. S. Bora, learned Standing Counsel for the GMDA, contended that the 18.06.2026 order was merely consequential to the 19.11.2025 order, which had not been challenged.
- He argued that the petitioners had failed to exhaust the statutory remedy of appeal under Chapter VIII of the GMDA Act, which provides a clear mechanism for redressal.
- Mr. B.P. Bora, counsel for respondent nos. 6 and 7, supported the GMDA’s stance, emphasising that the 19.11.2025 order was final unless appealed.
The Court's Analysis
The Court observed that the impugned order dated 18.06.2026 was merely a consequential order issued in furtherance of the original order dated 19.11.2025. Since the petitioners had not challenged the 19.11.2025 order, the Court held that the writ petition was not maintainable without first exhausting the statutory remedy of appeal.
"In the considered view of this court, without there being any challenge to the original Order dated 19.11.2025, a challenge to the impugned Order dated 18.06.2026, being only a consequential order for stopping the process of demolition is not to be interfered with."
The Court examined Sections 71, 72, and 73 of the GMDA Act, which provide for an appellate mechanism against orders passed under the Act. Section 72(2) stipulates that an appeal must be filed within one month from the date of the order, with provisions for condonation of delay at the Appellate Authority’s discretion.
The Court noted that the Appellate Authority, designated under Notification No. GDD.49/94/Pt/44 dated 22.08.1996, is vested with the powers of a civil court under Section 73(3) of the GMDA Act. This includes the authority to take evidence on oath, enforce attendance of witnesses, and compel production of documents. The Appellate Authority also has the power to condone delay in filing appeals.
Given these provisions, the Court held that the petitioners must first exhaust the statutory remedy before approaching the High Court under Article 226. The Court emphasised that alternative remedies must be pursued unless exceptional circumstances exist, which were not demonstrated in this case.
The Verdict
The writ petition was not entertained, and the Court reserved liberty for the petitioners to file an appeal before the Appellate Authority (District & Sessions Judge, Kamrup, Guwahati) within one month from 26.06.2026. The Court clarified that:
- The Appellate Authority shall consider any application for condonation of delay on merits, taking into account all relevant factors.
- The observations in the judgment do not prejudice the merits of the petitioners’ claims or those of the private respondents.
- The Appellate Authority shall decide the appeal on its own merits and in accordance with law.
What This Means For Similar Cases
Exhaustion of Statutory Remedies Is Mandatory Before Writ Petitions
- Practitioners must ensure that all statutory remedies under the relevant enactment are exhausted before filing a writ petition under Article 226.
- Courts are unlikely to entertain writ petitions challenging consequential orders if the original order remains unchallenged through statutory appeal mechanisms.
Appellate Authority Under GMDA Act Has Wide Powers
- The Appellate Authority under the GMDA Act is empowered to:
- Condone delay in filing appeals under Section 72(2).
- Exercise powers of a civil court under Section 73(3), including summoning witnesses and compelling production of documents.
- Award costs and direct execution of its orders as arrears of land revenue under Section 73(4).
- Petitioners should leverage these powers to present their case comprehensively before the Appellate Authority.
Condonation of Delay Is Discretionary but Not Arbitrary
- The Appellate Authority may condone delay in filing appeals if sufficient cause is shown.
- Practitioners should file applications for condonation of delay with detailed explanations, supported by affidavits or documentary evidence, to maximise chances of success.
- Courts will not interfere with the Appellate Authority’s discretion unless it is arbitrary or perverse.
