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Madhya Pradesh High Court · body

2006 DIGILAW 671 (MP)

Vikram Singh Parmar v. State of M. P.

2006-05-09

A.K.PATNAIK, A.M.SAPRE

body2006
Judgment ( 1. ) THE petitioner is the President of Century Estate Gulmohar Extension Rahwasi Sangh which is an association formed for looking after the interest of residents of the locality known as Century Estate Gulmohar Rahwasi Sangh and has filed this writ petition as a Public Interest Litigation. The petitioner has stated in this writ petition that originally Indore Municipal Corporation and Town and Country Planning Department had proposed a 80 feet wide road in the aforesaid locality connecting the existing A. B. Road with the Ring Road, but at the instance of respondent No. 4 by an order of September, 2000 annexed to the writ petition as Annexure P-4 the width of the said proposed road has been reduced to 40 feet and on the basis of reduced width of the road, the building plan of the respondent No. 4 has been passed by the Indore Municipal Corporation, respondent No. 2 allowing a set back of only 10 feet from the aforesaid road to the proposed building of respondent No. 4. The petitioner has, therefore, prayed for writ or order in the nature of mandamus or such other direction as the Court may deem fit directing the State of Madhya Pradesh (respondent No. 1), the Indore Municipal Corporation (respondent No. 2) and the Director, Town and Country Planning Department (respondent No. 3) not to change the alignment and width of 80 feet of the road passing through the aforesaid locality connecting the A. B. Road with the Ring Road. The petitioner has also prayed for a direction to respondent Nos. 1, 2 and 3 to ensure construction of 80 feet road connecting Saket with Ring Road through Manishpuri and Telephone Nagar and not to pass any site plan or building map contrary to it. The petitioner has further prayed for a direction to respondent Nos. 1, 2 and 3 to cancel the sanctioned map of respondent No. 4 and to direct the respondent No. 4 to allow appropriate set backs to ensure that the width of the road remains 80 feet. In the writ petition the petitioner also prayed for interim relief restraining the respondent No. 4 from carrying on any construction work on the plot situated at Khasra No. 1324 and 1325/2 of Khazrana Village which adjoins the aforesaid road. ( 2. In the writ petition the petitioner also prayed for interim relief restraining the respondent No. 4 from carrying on any construction work on the plot situated at Khasra No. 1324 and 1325/2 of Khazrana Village which adjoins the aforesaid road. ( 2. ) ON 6-5-2002 the Court issued notice and passed an interim order that respondent No. 4 shall not make any further construction on the front 40 feet of the land from the centre of the road until further orders. In the said order dated 6-5-2002, however, the Court clarified that if the respondent No. 4 wants to make any construction, then he may be permitted to do so only after leaving 40 feet as vacant land from the centre of the road, strictly in accordance with the sanctioned plan. ( 3. ) THEREAFTER the respondent No. 4 filed a return on 11-7-2002 stating therein inter alia that on 8-3-2000, the Joint Director of Town and Country Planning Department wrote a letter to the Director, Town and Country Planning Department making it crystal clear that in a development plan the proposed road is not 80 feet wide and as per Rule 39 (4) of M. P. Bhumi Vikas Rules, 1984, it is feasible to reduce the width up to 40 feet only. In the said return respondent No. 4 has further stated that by another letter dated 20-4-2000, the Joint Director of Town and Country Planning Department has again made the position clear to the Director, Town and Country Planning Department, explaining in details, as to how it is impossible to have a road of 80 feet width and has suggested that a road of 40 feet width with 5 feet Footpath on both side of the road will serve the purpose. ( 4. ) IN the said return of the respondent No. 4, it is stated that after this exercise were done by the Joint Director, Town and Country Planning Department and after the impugned order Annexure P-4 was passed in September, 2004 reducing the width of the road from 80 feet to 40 feet, Indore Municipal Corporation as well as Director, Town and Country Planning Department sanctioned the map of construction of respondent No. 4 on 31-10-2000. ( 5. ( 5. ) A return has also been filed on behalf of the State of Madhya Pradesh, respondent No. 1 on 12-7-2002 relying on various communications between different Authorities of the Town and Country Planning Department of the Government of Madhya Pradesh to show that a road width of the 40 feet was feasible under Rule 39 (4) of M. P. Bhumi Vikas Rules, 1984 and that it was impossible to have a road of 80 feet width considering the constructions already made in the area. ( 6. ) A return has also been filed by Indore Municipal Corporation, respondent No. 2 stating therein that since the State Government has reduced the width of the road from 80 feet to 40 feet, they have sanctioned the map of respondent No. 4 accordingly so as to allow the set back of 10 feet in the front of the building. ( 7. ) AFTER the returns were filed by respondents as indicated above, the Court heard the learned Counsel for parties on 9-9-2004 and observed that it will be appropriate that parties hold discussions and sort out the issue and that all the parties have agreed to meet in the chamber of the Commissioner, Indore Municipal Corporation on 27-9t2004 at 11. 00 A. M. for the said meeting. Thereafter the proposed meeting could not be held as scheduled and on 27-4-2005 the Court directed once again the parties to meet the Commissioner of Indore Municipal Corporation in chamber on 6-5-2005 at 11. 30 A. M. Pursuant to the said order, the parties met in the office of the Commissioner of Indore Municipal Corporation on 6-5-2005 but it appears from the order dated 11-7-2005 that no amicable settlement could come through in the said meeting. ( 8. ) WHEN the case was taken up for hearing today, Mr. S. C. Bagadia, learned Senior Counsel for the petitioner submitted that the width of the road was originally planned to be 80 feet but it is sought to be reduced to 40 feet in impugned order passed in September, 2005 at the instance of respondent No. 4. ( 8. ) WHEN the case was taken up for hearing today, Mr. S. C. Bagadia, learned Senior Counsel for the petitioner submitted that the width of the road was originally planned to be 80 feet but it is sought to be reduced to 40 feet in impugned order passed in September, 2005 at the instance of respondent No. 4. He took us through the plan Annexures P-20 and P-21 to show that the road from Anand Bazar side was more than 80 feet and that the connecting road from Anand Bazar side to Ring Road has been narrowed to 9 feet 9 inches in front of the residence of Mr. Janakilal Bhaiya which has now been purchased by respondent No. 5. He further submitted that the road continues to be narrowed because of the compound wall of Gulmohar residency owned by respondent No. 4. He submitted that if the respondent Nos. 4 and 5 leave sufficient space in front of their building and some portion of their land is acquired for the purpose of widening the road 80 feet, the connecting road between Ring Road and Anand Bazar would be as wide as 80 feet and the present traffic congestion can be taken care of. He submitted that since the action of the respondent Nos. 1 and 3 in reducing the road from 80 feet to 40 feet is not in public interest and is arbitrary, the Court should quash the decision of the authorities to reduce the width of the road from 80 feet to 40 feet and should direct them to provide a road of the width of 80 feet as originally planned. ( 9. ) MR. Ashok Kutumbale, learned Addl. Advocate General for State of Madhya Pradesh on the other hand relied on the communications between the authorities of the Town and Country Planning Department annexed to the return of the respondent No. 1 in which it has been stated that in the development plan the proposed road was not 80 feet and that as per the Rule 39 (4) of M. P. Bhumi Vikas Rules, 1984, it was feasible to have a road of 80 feet width and further that it was impossible to have a road of 80 feet width considering the constructions already made by different land owners on either side of the road. ( 10. ) SMT. ( 10. ) SMT. Meena Chaphekar, learned Counsel for respondent No. 4, submitted that since pursuant to the order passed by this Court a meeting was held on 6-5-2005 in the office of the Commissioner of Indore Municipal Corporation, wherein all the parties have agreed to have a road of 40 feet width, the Court should dispose of this writ petition in terms of the said agreement between the parties. Learned Counsel for the respondent No. 5 also reiterated the said submission of Smt. Meena Chaphekar. ( 11. ) WE are unable to accept the said submission of learned Counsel for respondent Nos. 4 and 5 that the parties have agreed in meeting held on 6-5-2005 that the road should be of 40 feet width because of what has been stated in the order dated 11 -7-2005 of this Court. The said order dated 11 - 7-2005 is quoted hereinbelow: 11-7-2005 Parties as before. Pursuant to the order, passed by this Court on 27-4-2005, it has been contended by learned Counsel appearing for parties that meeting was convened between all the respective parties by Commissioner, Municipal Corporation on 6-5-05, but, no amicable settlement came through in the said meeting. It was also submitted that Commissioner also had visited the spot, but, the matter could be resolved amicably. Shri Agrawal, learned Counsel appearing for Corporation, submitted that he will file the minutes of the meeting after serving copies thereof on the Counsel appearing for respective parties. List it after 3 weeks. It will be clear from the aforesaid order dated 11-7-2005 that ultimately an amicable settlement was not possible. Hence we propose to dispose of this writ petition on merits. ( 12. ) SUB-RULES (4) and (8) of Rule 39 of M. P. Bhumi Vikas Rules, 1984 are quoted hereinbelow: (4) Width of means of Access. (a) The residential plots shall about on a public means access like streets or road. Plots which do not abut on a street/road shall abut/be opposite to or have access from spaces directly connected from the street or road. The width and other requirements of means of access shall be as nearly as be as given in Table 3. In no case, development on plots shall be permitted unless it is accessible by a public street of width not less than 6 metres. (b) Ors. The width and other requirements of means of access shall be as nearly as be as given in Table 3. In no case, development on plots shall be permitted unless it is accessible by a public street of width not less than 6 metres. (b) Ors. Building.- For all industrial buildings, theatres, cinema houses, assembly halls, stadia, educational, buildings, markets, Ors. buildings which attract large crowd, the means of access shall not be less than the following: (8) Authority may require larger width of means of access in general interest. In the interest of general development of an area, the Authority may require the means of access to be of larger width than that required under sub-rule (4 ). ( 13. ) IN sub-rule (4) of Rule 39 of M. P. Bhumi Vikas Rules quoted above the width and other requirements of means of access to plots which do not abut on a street/road have been indicated in a table and the maximum width of the access in meters indicated in the said table is given as 2. 4 metres. But sub-rule (8) of Rule 39 provides that in the interest of general development of an area, the Authority may require the means of access to be of larger width than that required under sub-rule (4 ). Hence the width of means of access should be normally those indicated in sub-rule (4) of Rule 39, but the Authority may require larger width of means of access in the interest of the general development of an area. Even other wise the Authorities while deciding as to how much should be width of a road or a public street will have to take into consideration the larger public interest and particularly the requirements of the traffic in the area. The decision no doubt is that of the Authority under the Rules and not of the Court but decision of the Authority must be based on relevant considerations. It is well settled that if an Authority does not take into consideration relevant material or relevant factors while taking a decision, such a decision can be interfered with the Court in exercise of judicial powers. ( 14. ) AS has been held by the Supreme Court in M/s. Hochtief Gammon v. State of Orissa and Ors. It is well settled that if an Authority does not take into consideration relevant material or relevant factors while taking a decision, such a decision can be interfered with the Court in exercise of judicial powers. ( 14. ) AS has been held by the Supreme Court in M/s. Hochtief Gammon v. State of Orissa and Ors. AIR1975 SC 2226 , [1975 (31 )FLR279 ], 1975 Lablc1608 , (1975 )II LLJ418 SC , (1975 )2 SCC649 , [1976 ]1 SCR667 : The executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The Courts have power to see that the Executive acts lawfully. It is no answer to the exercise of that power to say that the Executive acted bona fide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by Courts by failing to give reasons. If they give reasons and they are not good reasons, the Court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of those reasons may not be open to Judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers there must be material to show that they have considered all the relevant facts. ( 15. ) WE have perused the two communications dated 8-3-2000 and 20-4-2000 of the Joint Director, Town and Country Planning Department to the Director, Town and Country Planning Department and all other communications of the authorities of the Town and Country Planning Department on the subject on which reliance has been placed by respondent Nos. 1 and 4 and in the said communications though relevant factors have been mentioned while fixing the width of the road 40 feet, the most relevant factor namely the existing traffic and the traffic in future on the said road connecting Anand Bazar area with Ring Road does not find mention. We have held that the traffic requirement of an area including the road or street or means of access would be of paramount relevance while deciding as to what should be the width of the road or street or means of access. We have held that the traffic requirement of an area including the road or street or means of access would be of paramount relevance while deciding as to what should be the width of the road or street or means of access. But since the existing width of road is less than 40 feet, it will not be possible for the authority now to decide as to whether a road of the width of 40 feet will be able to take care of the moving traffic of the area in question. It is only after the road is widened to 40 feet and the traffic in the area moves on such road of 40 feet width that the authorities will be able to assess as to whether the road requires to be widened up to 80 feet or not. For this reason we are of the considered opinion that as per the impugned decision in Annexure P-4 the road should be first widened up to 40 feet and within a period of six months after the road is so widened authorities should take decision on the basis of the traffic during the peak hours as to whether the road should be widened up to 80 feet if necessary by acquisition of adjacent land and properties. We are also of the considered opinion that till the authorities decide within the aforesaid time of six months as to whether the road requires widening up to 80 feet, the interim order passed by this Court on 6-5-2002 restraining the respondent No. 4 from making any construction on front 40 feet from the centre of the road should continue but it will be open for respondent No 4 to make construction by leaving 40 feet land open from the centre of the road in accordance with the sanction of the Indore Municipal Corporation. Similarly we direct that the respondent No. 5 also will not make any construction in the front 40 feet measured from the centre of the road. These restraints on respondent Nos. Similarly we direct that the respondent No. 5 also will not make any construction in the front 40 feet measured from the centre of the road. These restraints on respondent Nos. 4 and 5 are necessary in the public interest or the general interest of the development of the area because if constructions are made by them in the meanwhile on the front side of their land, it may not be possible for the authorities to expand the road to 80 feet by acquisition and payment of heavy compensation even if the requirement of the traffic in the area may warrant expansion of the road to 80 feet. Since the map will have to be sanctioned by the Indore Municipal Corporation, it is the Indore Municipal Corporation which will determine as to how exactly this 40 feet width of land will be left from the centre of the road by respondent Nos. 4 and 5. ( 16. ) WITH the aforesaid directions, this PIL stands disposed of.