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Madhya Pradesh High Court · body

2013 DIGILAW 901 (MP)

Prakash Chandra Agarwal v. State of M. P.

2013-08-01

A.K.Shrivastava

body2013
ORDER 1. By this petition under Article 226/227 of the Constitution of India, the petitioners have sought the following reliefs : (a) the respondents Municipal Corporation, Jabalpur be directed to certify to this Hon’ble Court the entire record leading to issuance of notices Annexure P-4 and P-5 upto the demolition of the building; (b) a writ of certiorari be kindly issued quashing the notices Annexure P-4 dated 11.8.2000 and Annexure P-6 dated 16.8.2000; (c) a direction be issued to the respondents No.1 to 5 and 7 and 8 not to proceed to further demolish the building H.No.177 Sarafa Ward, Jabalpur. They be also directed not to obstruct further construction as per the plan sanctioned vide order dated 8.5.2000 Annexure P-2; (d) a direction be further issued to the Municipal Corporation/Commissioner, Municipal Corporation, Jabalpur to consider the petitioners’ offer to compound in terms of section 308A of the M.P. Municipal Corporation Act, 1956, if any construction is found not in accordance with the permission granted; (e) a direction be issued against the respondents 7 and 8 to compensate the petitioners for damage to the building (the petitioners’ estimate of damage being Rs.10,00,000/- Rs. Ten lacs (sic) and to reimburse the Municipal Corporation for the amount paid by it to the injured as compensation for the injuries sustained; (f) a direction be issued to be competent disciplinary authorities of the State/Municipal Corporation to proceed to take disciplinary action against respondents 7 and 8 and to punish them according to law, if found guilty; (g) any other relief and costs of this petition be awarded to the petitioners. 2. As per the case of the petitioners, after obtaining requisite permission from the Municipal Corporation, Jabalpur and its functionaries they raised necessary construction. However, a notice under section 307(2) of the M.P. Municipal Corporation Act, 1956 (in short “Act of 1956”) dated 11.8.2000 (Annexure P-4) was issued by respondent No.4 City Engineer, Municipal Corporation, Jabalpur to the first petitioner Prakash Chand Agarwal that he has raised construction contrary to the approved plan and directed to submit reply as to why illegal construction may not be dismantled. In pursuance to the aforesaid notice which was received by first petitioner on 11.8.2000 (Annexure P-4), a written reply was submitted by him on 14.8.2000 i.e. within three days and same was also received on the same day by the office of respondent No.4. In pursuance to the aforesaid notice which was received by first petitioner on 11.8.2000 (Annexure P-4), a written reply was submitted by him on 14.8.2000 i.e. within three days and same was also received on the same day by the office of respondent No.4. Despite the reply of show cause notice was given by the first petitioner, another notice was issued to him by the respondent No.4-City Engineer, Municipal Corporation, Jabalpur on 16.8.2000 (Annexure P-6) stating therein that despite notice under section 307(2) of the Act of 1956 was served upon him he did not file any reply and therefore he was directed to submit the relevant document within 24 hours failing which it was stipulated in the said notice that at any moment, the Dafai Squad of Municipal Corporation, Jabalpur would come and dismantle the illegal construction. Against first petitioner submitted his reply (Annexure P-7) and submitted that earlier on 14.8.2000 the reply was submitted and it is incorrect to say that no reply was submitted by him. The copy of earlier reply dated 14.8.2000 along with copy of sanctioned map was also submitted with the reply (Annexure P-7). Thereafter it appears that on 17.8.2000 (wrongly typed 17.2.2000) an application (Annexure P-8) was submitted by the petitioner to the Mayor stating therein that despite he submitted reply without hearing him, the Municipal Corporation, Jabalpur is dismantling the structure and construction raised by the first petitioner which he constructed according to sanctioned map. Vide Annexure P-9 on 19.8.2000 a report was also submitted to the Station House Officer, Police Station Kotwali, Jabalpur praying to take appropriate action. Thereafter a portion of building of petitioners was pulled down and dismantled. Hence, this petition has been filed by the petitioners. 3. The contention of learned senior counsel for the petitioners is that the procedure so adopted by the Municipal Corporation, Jabalpur and its functionaries dismantling the part of the building of the petitioners is in complete derogation to the principle of natural justice and their act is violative to the guarantee of right to hold property under Article 300A of the Constitution of India. Similarly the action of the Municipal Corporation, Jabalpur and its authorities is in contravention to Article 21 of the Constitution of India. Similarly the action of the Municipal Corporation, Jabalpur and its authorities is in contravention to Article 21 of the Constitution of India. Learned senior counsel submits that overwhelming material has been placed that at all point of time whenever notice was given to the first petitioner, he submitted requisite reply but without giving a personal hearing to him or by holding how and in what manner the construction is illegal or contrary to sanctioned map the part of building has been dismantled. It has also been putforth by him that notice under section 307(2) of the Act of 1956 (Annexure P-4) is vague on its face for the simple reason that how and in what manner the construction which was raised by the petitioners was in contravention to the sanctioned map, nothing has been indicated in the said notice. It has been further propounded by learned senior counsel that the Collector, Jabalpur directed to hold a magisterial enquiry and accordingly the Sub-Divisional Magistrate, Jabalpur conducted the enquiry holding that act of Municipal Corporation, Jabalpur and its authorities to dismantle the part of the building was in contravention to the law but simultaneously it was further held that despite the first petitioner was noticed to remove the illegal construction in accordance with law instead of removing the same, in a hurried manner he completed the construction. The copy of enquiry report dated 22.2.2001 has been separately filed along with application (I.A. No.7738/2010) to take the enquiry report on record. Learned senior counsel hence submitted that because notice (Annexure P-4) issued under section 307(2) of the Act of 1956 was vague, therefore, by allowing this petition necessary compensation be provided to the petitioners. 4. Per contra, Shri Anshuman Singh, learned counsel appearing for the Municipal Corporation and its functionaries submitted that enquiry report speaks about itself and it is apparent that despite notices were sent to remove the illegal construction on the contrary, first petitioner raised the constructrion in a hurried manner and therefore action of dismantling the illegal structure by the Corporation cannot be said to be in contravention to any law. Thus, it has been prayed that this petition be dismissed. 5. Shri Jitendra Shrivastava, learned counsel for respondents No.6 to 8 has reiterated the same arguments as advanced by Shri Anshuman Singh, learned counsel for respondents No.2 to 5. 6. Thus, it has been prayed that this petition be dismissed. 5. Shri Jitendra Shrivastava, learned counsel for respondents No.6 to 8 has reiterated the same arguments as advanced by Shri Anshuman Singh, learned counsel for respondents No.2 to 5. 6. Having heard learned counsel for the parties, I am of the view that this petition deserves to be allowed in part. 7. The basic document which is the foundation stone of this case is the notice dated 11.8.2000 issued by respondent No.4-City Engineer, Municipal Corporation, Jabalpur on its face value according to me is quite vague for the simple reason that how and in what manner the alleged construction which was raised by the first petitioner was illegal, has not at all been mentioned in the notice. Further it has also not been mentioned whether the petitioners have raised any floor in contravention to the sanctioned map; or no open space has been left in accordance to the yardstick given in the sanctioned map; whether the construction was illegal on account of constructing some projection etc., all these essential facts are totally lacking in the said notice. That apart along with the notice no separate map has been annexed indicating that particular portion which has been raised by first petitioner is illegal and in contravention to the sanctioned map. Hence, according to me, the foundation stone of the case of respondents is very weak. According to me, had the details of illegal construction been mentioned in the notice, the first petitioner would have stated in his reply that alleged illegal construction which the Corporation is objecting is not illegal and is in consonance to the sanctioned map. Although it has been stated in the reply dated 14.8.2000 (Annexure P-5) against show cause notice (Annexure P-4) that entire construction has been made according to the sanctioned map. This reply was received on 14.8.2000 i.e. within three days in compliance to the notice (Annexure P-4). This Court fails to understand that when there is a receipt of concerning person of the Corporation upon the reply (Annexure P-5) how and under what authority again City Engineer, Municipal Corporation, Jabalpur vide its notice dated 16.8.2000 (Annexure P-6) gave another notice under section 307(2) of the Act of 1956 that first petitioner has not submitted any reply although notice dated 11.8.2000 was served upon him. 8. 8. Be that as it may, in this notice (Annexure P-6) time of 24 hours was given to first petitioner to produce the entire old documents or to dismantle the illegal construction failing which at any moment of time the squad of Corporation would come and dismantle the illegal construction and the cost shall be realized from the petitioner. Again first petitioner submitted his reply (Annexure P-7) against this notice and specifically stated therein that it is incorrect to say that he did not submit any reply within three days. Again it was stated in this reply that the construction has been made in accordance to the sanctioned map. Along with this reply the first petitioner also annexed the copy of his earlier reply which he submitted on 14.8.2000 and the copy of sanctioned map. 9. In this view of the matter in all fairness the petitioners should have been heard and a specific order should have been passed indicating that particular construction has been raised in contravention to the sanctioned plan but this appears to have not been done and straightway the construction was dismantled, which according to the Corporation was illegally raised. Hence, according to me, the action of the Municipal Corporation, Jabalpur and its functionaries is de hors to the guarantee provided by the Constitution under Article 300A that no person shall be deprived of property saved by authority of law. Further the action of the Municipal Corporation, Jabalpur and its authorities is in contravention to Article 21 of the Constitution of India and also Article 19(1)(g) which speaks to practise any profession or to carry on any occupation, trade or business. Admittedly the construction which was raised was for business as well as for the residence. 10. The modus operandi which was applied by the Corporation and its functionaries was in total derogation of the law. Hence, to me, since the notice under section 307(2) of the Act of 1956 was vague and the entire proceedings were taken on the basis of vague notice resulting into dismantling of construction was totally violative to the law. Hence, the impugned notice dated 11.8.2000 (Annexure P-4) stands quashed. 11. I shall now take the another submission put forth by learned senior counsel for the petitioners that adequate compensation should be directed to be paid to the petitioners. Hence, the impugned notice dated 11.8.2000 (Annexure P-4) stands quashed. 11. I shall now take the another submission put forth by learned senior counsel for the petitioners that adequate compensation should be directed to be paid to the petitioners. According to me, there is no material on record that what was the cost of material? What was the cost of labour? What was the cost of construction which was dismantled? All these are highly disputed questions of fact, which cannot be decided by this Court while exercising writ jurisdiction. Hence, the petitioners if so advised, they may file a civil suit for damages mentioning therein that how much loss they have suffered on account of illegal action of the respondent-Corporation by dismantling the structure. If such a suit is filed by the plaintiff-petitioners, the Municipal Corporation would be free to demonstrate that the construction which was raised by the first petitioner was illegal. Thereafter the trial Court may assess the damages. The plaintiffs shall be free to raise the plea that dismantle of the part of building was made at the instance of respondents No.6 and 7 having mala fide attitude against the petitioners, therefore, they are also jointly and severally liable to pay damages. If such a plea is raised it will be decided in accordance to the law by learned trial Court. 12. Resultantly, this petition succeeds and is allowed in part. The impugned notice dated 11.8.2000 (Annexure P-4) stands quashed. The petitioners are entitled for the cost. Counsel fee Rs.10,000/- if pre-certified. .............