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2011 DIGILAW 1209 (MP)

Gopal Dubey v. Municipal Corporation, Indore

2011-10-21

PRAKASH SHRIVASTAVA, SHANTANU KEMKAR

body2011
ORDER 1. This Public Interest Petition is by one of the resident of Suniket Apartment in Shreenagar Extension Colony, Indore for protecting the retention wall and slab which has been constructed in the adjoining Nala. 2. In brief, the case of the petitioner is that Suniket Apartment was constructed by respondent No.5 Kalani Industries Ltd. on the land adjoining to the nala. The residents of the apartment and the builder proposed a plan to build a retention wall and slab to cover the nala and sought permission for that purpose from the respondent No.1 Municipal Corporation, Indore which was granted by the Corporation vide letter No.7038/CE/l3.12. 1999. A report from the Nazool Office was obtained in respect of the width of nala at different places and the permission from Nazool Officer was also obtained vide letter No.935/01 dated 1.8.2001 which on the very next date vide letter No.948/2001 dated 2.8.2001 was cancelled. The construction of the retention wall and slab over the nala was done on the basis of the said permission and a garden has been developed on the covered portion of the nala. The respondents were taking steps to remove the slab constructed on the nala on the ground that it had obstructed the flow of nala causing inconvenience to the adjoining areas, hence. the petitioner approached this Court with the prayer to restrain concerned respondents from taking any action for removal of slab constructed over the nala. Alternatively a prayer has been made for constituting a technical committee to study if the construction of slab on the top of the nala has in any way affected the flow of the nala. 3. The respondent No.1 Municipal Corporation, Indore by filing the reply has taken the stand that on account of the construction of walls on both the sides and putting of the slab, the natural flow of nala is obstructed due to which rainy water is assembling and causing inconvenience. Their further stand is that the construction on the nala has been done without any sanction and without complying with the condition and requirement contained in the letter dated 13.12.1999. They have taken a categorical stand that the Corporation had not granted any permission to construct the retention wall or the slab and the entire construction is illegal. They have also disputed the drawing filed by the petitioner along with the writ petition. 4. They have taken a categorical stand that the Corporation had not granted any permission to construct the retention wall or the slab and the entire construction is illegal. They have also disputed the drawing filed by the petitioner along with the writ petition. 4. The respondents No.2 to 4 i.e. the Nazool Officer, Collector and the State have also filed their replies and taken the stand that the slab has been constructed without any authority of law and it is an encroachment. The nala is a nazool property and no construction on it can be done without permission of the competent authority. The construction of retention wall and slab has resulted into obstruction in the natural flow of nala and accumulation of rainy water into adjoining area. They further took the stand that on the basis of the report of Revenue Inspector, proceedings under section 248 of the MPLR Code were initiated against respondent No.5 and the order has been passed against him. 5. Respondent No.5 has filed the reply, supporting the case of the petitioner and taking the stand that IDA had proposed to cover all the nalas in Indore to improve the environment. The further stand of the respondent No.5 is that he had approached the Collector vide letter dated 17.4.1997 and to the Municipal Corporation vide letter dated 3.5.1999 placing the difficulty faced on account of the open nala. The representation was also made by the Shreenagar Extention Residents Association to the IDA. The respondent No.5 had received the letter dated 13.12.1999 from Municipal Corporation granting 'No Objection' from Municipal Corporation for the proposed construction. Thereafter the technical data was submitted by respondent No.5 for approval to the Municipal Corporation. His further stand is that by virtue of section 81 A of the Municipal Corporation Act, the land in question is managed by Municipal Corporation and that the Nazool Officer, by order dated 2.8.2001, had illegally withdrawn the permission granted on 1.8.2001. According to the respondent No.5, the slab has been constructed on the nala and garden has been developed over the constructed slab in the public interest. 6. Learned counsel appearing for the petitioner submitted that the construction of the retention wall and the slab, over the nala has been made after obtaining due permission from the concerned authorities, therefore, the respondents 1 to 4 are not justified in taking steps to remove it. 6. Learned counsel appearing for the petitioner submitted that the construction of the retention wall and the slab, over the nala has been made after obtaining due permission from the concerned authorities, therefore, the respondents 1 to 4 are not justified in taking steps to remove it. He further submits that the construction has been done and garden has been developed on the covered slab in the larger public interest, therefore, it is required to be protected and the respondents cannot be permitted to remove it in an arbitrary manner. He further submitted that in the city, there are other projects constructed with public, private participation, therefore, this construction be also treated of the same nature and protected. 7. The learned counsel appearing for respondents No.1 to 4 have submitted that the land on which the construction has been made does not belong to the builder or the society, therefore, they have no right to raise any construction on the said land. He further submitted that the construction has been done without seeking any permission, therefore, such an illegal construction cannot be protected. He also submitted that the construction is obstructing the flow of nala. 8. The learned counsel for respondent No.5 has supported the case of the petitioner. 9. We have heard the learned counsel for parties and perused the record. 10. It is not disputed before this Court that the construction has been done on the nala and its adjoining land on which neither the society nor the respondent No.5 has any right. The petitioner is not claiming the society or respondent No.5 to be owner of the land in question. On the contrary he has admitted the ownership of respondents No.1 to 4. The respondents, along with their additional reply dated 13th July, 2011 have enclosed the documents to show that the land adjoining to the nala is a nazool land owned by the respondents 1 to 4. 11. The main issue is as to whether the retention wall and the slab were constructed by the respondent No.5 or the Society with valid sanction? The facts as disclosed in the writ petition indicate that the respondent No.5 had submitted the application dated 29.6.2001, seeking permission and the Nazool Officer had sent the communication dated 1.8.2001 stating that the permission will be in accordance with the memo number 7038/CE/13.12. The facts as disclosed in the writ petition indicate that the respondent No.5 had submitted the application dated 29.6.2001, seeking permission and the Nazool Officer had sent the communication dated 1.8.2001 stating that the permission will be in accordance with the memo number 7038/CE/13.12. 1999 of the City Architect, Municipal Corporation, Indore and that in future if the flow of the nala is obstructed, the slab can be removed, but the said letter dated 1.8.2001 was cancelled on the very next day by the letter dated 2.8.2001 taking note of the fact that the land of the nala is nazool land and the permission to raise construction on that spot is illegal. It is also worth noting that the letter dated 2.8.2001 was not challenged either by respondent No.5 or the Society, therefore, no right accrued in favour of the respondent No.5 or the Society on the basis of the communication dated 1.8.2001 which was immediately cancelled on the next day by the Nazoor Officer. 12. The petitioner has also based his claim upon the letter of the City Architect, Municipal Corporation, Indore dated 13.12.1999 addressed to the Managing Director of the respondent No.5, by which a 'No Objection' in respect of the construction of the nala was granted. By this letter, the respondent No.5 was required to submit scheme for development work prepared by the Architect and execute agreement with the Municipal Corporation containing relevant conditions binding on .the parties. Admittedly, no agreement has been executed between the Municipal Corporation and the respondent No.5 nor any such scheme has been approved by the Corporation for the construction of the retention wall and slab on the nala. Therefore, no right accrued to the society or respondent No.5 on the basis of letter dated 13.12.1999. 13. Thus, it is found that the petitioner on the basis of the letter dated 13.12.1999 issued by the City Architect, Municipal Corporation, Indore or the communication dated 1.8.2001 sent by the Nazool Officer, cannot claim that the construction is a lawful construction. No document has been placed on record by the petitioner, indicating that the construction of retention wall and the slab was done after obtaining due permission from the competent authority. Hence, the contention of the petitioner that the construction of the retention wall and the slab on the nala is lawful, cannot be accepted. 14. No document has been placed on record by the petitioner, indicating that the construction of retention wall and the slab was done after obtaining due permission from the competent authority. Hence, the contention of the petitioner that the construction of the retention wall and the slab on the nala is lawful, cannot be accepted. 14. The next issue is in respect of the correctness of the steps being taken by respondents No.1 to 4 for removing the retention wall and the slab on the nala. 15. The impugned construction has been stated to be done for the convenience of the local residents. This Court vide order dated 23.8.2006 had appointed Shri S.C. Bagadiya, Senior Advocate to inspect the spot and give his report. The final report has been given by him on 11.4.2008 stating that no complaint about the accumulation of water was received by him from any party and there was no existing problem of water accumulation in the nala. His further report is that the construction of supporting side wall is not leading to any water accumulation. The official respondents have disputed this report by filing objection to this report before this Court. 16. Thus, rival contentions have been made by the respective parties about the public utility of the impugned construction or the inconvenience caused by it. Though, the impugned construction has been done without sanction, but in the peculiar facts of this case, that alone need not be the sole ground for its demolition if it has public utility and it is not for exclusive use by any person or group of persons and if they are not claiming ownership on the same. 17. Learned counsel for respondents has placed reliance upon the judgment of the Supreme Court in the matter of Priyanka Estates International Pvt. Ltd. and others v. State of Assam and others, reported in 2009(8) Supreme 30 , in this regard wherein the order of demolition was approved since the construction of building beyond fifth floor was found to be not only illegal, unauthorised, without any sanction or approval of plans but also against the spirit of the order passed by the SAC. It is worth noting that in that case the construction was made for the benefit of the individual owners and not for the general public at large. It is worth noting that in that case the construction was made for the benefit of the individual owners and not for the general public at large. They have also placed reliance upon the judgment of the Supreme Court in the matter of Mandal Panchayat, Hunsagi v. North Eastern Karnataka Road Transport Corporation, reported in (2009)7 SCC 450 , where the construction of shops by the mandal panchayat was found to be illegal and a direction was issued for their demolition. In that matter, the alleged construction was obstructing the egress and ingress of passengers to the bus stand causing public inconvenience. Thus, these judgments are not of much help to the respondents. 18. As against this, the learned counsel for the petitioner has placed reliance upon the judgment in the matter of Syed Muzaffar Ali and others v. Municipal Corporation of Delhi, reported in 1995 Supp.(4) SCC 426, wherein it has been held that mere departure from the unauthorised plan or putting up of a construction without sanction does not ipso facto and without more necessarily and inevitably justify demolition of the structure. The Supreme Court held thus: "4. However, it is to be pointed out "that the mere departure from the authorised plan or putting up a construction without sanction does not ipso facto and without more necessarily and inevitably justify demolition of the structure. There are cases and cases of such unauthorised constructions. Some are amenable to compounding and some may not be. There may be cases of grave and serious breaches of the licensing provisions or building regulations that may call for the extreme step of demolition." 19. The Supreme Court in the matter of Municipal Corporation, Ludhiana v. Inderjit Singh and another, reported in (2008)13 SCC 506 , wherein while considering the issue of demolition of the whole marriage hall without application of mind, without opportunity of hearing and without considering the extent of illegal construction, the Supreme Court held: "18. Had a proper show cause notice been served upon the first respondent, he could have shown that the alleged violation of the provisions of the Act is of negligible character which did not warrant an order of demolition. Respondent l's contention that only an area of 14 sq.ft. was the subject-matter of unauthorised construction should have been considered by the appellant and an appropriate order thereupon should have been passed. Respondent l's contention that only an area of 14 sq.ft. was the subject-matter of unauthorised construction should have been considered by the appellant and an appropriate order thereupon should have been passed. It was in a situation of this nature, the appellant was statutorily obligated to apply its mind in regard to the nature and extent of unauthorised construction, if any." 20. In the matter of Kewal Kishan Gupta v. J & K Special Tribunal and others, reported in (2005)7 SCC 110 , the Supreme Court while considering the validity of the order of demolition in respect of the unauthorised construction held that: "16. ... The phase of rapid growth of industrial development also. makes it unnecessary for permitting demolition of the structure even if it be in contravention of the provisions of the Act or the zoning provisions in the previous master plan. Considered from all angles, it appears that the High Court need not have taken an activist role in directing demolition of the offending structure which had been permitted to be compounded by the competent authority, namely, the Tribunal." 21. Keeping in view the aforesaid position in law and also the specific stand of the petitioner that the retention wall and the slab on the nala in the present case has not been constructed for the benefit of any particular individual but it is stated to be constructed for the benefit of the public at large, therefore, we are of the opinion that the interest of justice will be served if the respondents constitute a committee of at least three high' officials to take a decision as to whether it would be in the public interest to demolish the impugned construction or to take over the control of the impugned construction and to utilise it for the benefit of general public at large. While taking the said decision, the committee will be governed by the criteria of the larger public interest. However, we make it clear that if the committee reaches to the conclusion that the existence and continuation of the impugned construction is not in the public interest, then it would be open to them to remove it in accordance with law. 22. The writ petition is accordingly disposed of. No cost.