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2025 DIGILAW 163 (MP)

Manisha Agarwal v. Municipal Corporation Gwalior

2025-03-04

MILIND RAMESH PHADKE

body2025
ORDER The present petition under Article 226 of the Constitution of India is directed against the order dated 25.11.2024 passed by Municipal Corporation Gwalior by which building permission has been granted to respondent No.3 for raising construction over the disputed plot. 2. In short, the facts of the case are that the petitioner is the co-owner of House No.1477 situated at Ward No.57, Daal Bazar, Lashkar Gwalior. The petitioner has 31.11% share in the plot in question and respondent no. 3 is the second co-owner, owning 68.89 % of the property. The petitioner had acquired the undivided share in the land in question from its former land owner i.e., Om Prakash Gupta through a registered sale deed dated 04.03.2022 & 09.03.2022. Out of the total land bearing area 4477 sq. ft., the petitioner is owner of 1392 sq. ft. The respondent no. 3 purchased the 68.89 % of undivided share in the land from its owner Shri Yogendra Gupta, Mamta Gupta, Indu Gupta, Krishnakumar Gupta, Ramkumar Gupta etc. vide a registered sale deed dated 16.03.2024. The land in question is in co-ownership of the petitioner and the respondent no. 3.The respondent no.3 had obtained a permission from the Municipal Authorities for raising construction over the property in question. The petitioner had raised his concerns over this issue before the Municipal Authorities and an order had been passed whereby respondent no. 3 has been restrained from raising construction but the respondents no.3 have not stopped raising construction over the whole property in question despite the order of stay being passed by the Municipal Authorities. In this regard, the petitioner had made various complaints and filed representations before the Municipal Authorities for the cancellation of the permission granted to the respondent no.3, but no heed has been paid to the complaints and representations made by the petitioner. In relation to the property in question, the petitioner has also filed a civil suit for declaration of title and permanent injunction against the respondent no. 3 wherein the petitioner has filed an application for temporary injunction for prevention of alienation and raising construction over the entire property in question until the pendency of the suit. Despite an order being passed by the Municipal Authorities whereby respondent no. 3 has been restrained from raising construction, the respondent no.3 have not stopped raising construction over the whole property in question. Despite an order being passed by the Municipal Authorities whereby respondent no. 3 has been restrained from raising construction, the respondent no.3 have not stopped raising construction over the whole property in question. Being aggrieved by the aforesaid illegal action of respondent No.3, the present petition has been filed. 3. Learned Senior counsel for the petitioner has drawn attention of this Court to Rule 14, 16(1) (b) and 16(11) of BHUMI VIKAS RULES , 2012. Rule 14 provides that every person who intends to develop, erect, re-erect or make alteration in any land or building shall make an application in writing to the Authority or authorised Architect/Structural Engineer to issue building permission in the forms given in Appendix A-1 (in case of development permission) or in Appendix A-2 and A-2(1) (in case of building permission) with documents and necessary fees specified. Such application shall be accompanied by documents, plans and statements in the quadruplicate. Further Rule 16(1)(b) provides that the application in Appendix A-2 shall be accompanied with application fee, key plan, site plans, Sub Division/Layout Plan approved under Section 30 of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973, Building Plans, Service Plans, Project Report out lining the proposed development, documents showing proof of ownership or of any legal right in relation to the suit, Nazul NOC, Proof of the application having been authorized by the owner to submit application (if applicant is not the owner), parking plans alongwith parking calculations and certificate of supervision as prescribed in rule rule (2) to 12 of this Rule. Further Rule 16(11) provides that every application shall be accompanied by the following evidence of applicant's right, title and interest in the land or plot namely- (a) attested copy of the sale-deed, lease-deed or any order documents under which right, title or interest in the land or plot is claimed; (b) attested copy of the khasra plant (patwari aks) and khatauni record if any; (c) attested copy of No Objection Certificate from Nazul; (d) other document that may be considered necessary by the Authority. In case of lease hold plots' the lessee shall have to provde that he is entitled to construct on the lease hold plot; and (e) authorisation of owner, if applicant is not the owner. 4. In case of lease hold plots' the lessee shall have to provde that he is entitled to construct on the lease hold plot; and (e) authorisation of owner, if applicant is not the owner. 4. It is submitted that the Authorities while granting building permission has neither followed the procedure as prescribed in the aforesaid Rules nor appreciated the documentary evidence, therefore, the entire proceedings of granting building permission to the respondent No.3 is vitiated in the eyes of law. 5. It is further submitted that from perusal of Anneuxre P/1 the order impugned whereby the permission to raise construction over the land in question has been granted to respondent No.3, it is evident that for the entire area, the permission was sought which was granted in total derogation of the fact that his share in the property was limited and in the property 31.11% share was of the petitioner and 68.89% was of respondent No.3. 6. It is further submitted that being the co-owners of the land in question no alienation or construction could had been raised over the land in question until the partition is carried out but the respondent no.3 has falsified documents and obtained the permission and is raising construction over the land in question, therefore the said act cannot be sustained in the eyes of law and thus the permissions so granted deserves to be cancelled. 7. Per contra, learned counsel for the respondent No.3 submits that that from perusal of the sale-deeds executed in favour of the petitioner as well as respondent No.3, it could be evident that the description of the particular area of the property sold has been mentioned therein and from the very inception, the petitioner was in the knowledge that she has purchased a particular part of the land of share 31.11% and the permission which has been sought for raising construction over the disputed property was only limited to the extent of house which has been purchased. The very contention of the petitioner that the permission was sought for the entire house is not acceptable. 8. On the other hand, learned counsel for respondents No.1 and 2 submits that under Section 293 (3) of the Madhya Pradesh Municipal Corporation Act, 1956, building permission can be challenged before the district court by filing an appeal and the said remedy has not yet been availed by the petitioner. 8. On the other hand, learned counsel for respondents No.1 and 2 submits that under Section 293 (3) of the Madhya Pradesh Municipal Corporation Act, 1956, building permission can be challenged before the district court by filing an appeal and the said remedy has not yet been availed by the petitioner. It is not the case of the petitioner that the Authority who has granted permission was not authorized to pass such order and the order passed is bereft of jurisdiction, the case is only that the procedure has not been followed while granting building permission. Moreso, under Section 299 -A of the Madhya Pradesh Municipal Corporation Act, 1956, the State Government can also set-aside the order. Even though it may be an illegal order but that cannot be a ground for by-passing the alternative remedy. 9. Encountered with the submission made by learned counsel for respondents No.1 and 2, learned senior counsel for the petitioner submits that with regard to alternative remedy, law is well settled, inasmuch as an alternative remedy is no bar under Article 226 of the Constitution of India where the order is without jurisdiction and appears to be passed in blatant exercise of powers and the same is against the principles of natural justice. To bolster his submissions, reliance is placed on Whirlpool Corporation Vs. Registrar of Trademarks, Mumbai & Others reported in 1998 (8) SCC 1 . 10. Heard counsel for the parties and perused the record. 11. Sections 293 (3) and 299-A of Madhya Pradesh Municipal Corporation Act, 1956, are reproduced below for ready reference and convenience:- “293. Prohibition of Erection or re-erection of buildings .- (1) xxxx. (2) xxxxx (3) Any person aggrieved by the order of the Commissioner in this behalf may appeal to the district court within thirty days of such order in the manner prescribed therefore and the decision of the district court shall be final. Prohibition of Erection or re-erection of buildings .- (1) xxxx. (2) xxxxx (3) Any person aggrieved by the order of the Commissioner in this behalf may appeal to the district court within thirty days of such order in the manner prescribed therefore and the decision of the district court shall be final. 299-A. Power of State Government to cancel or revise permission for construction of a building .- If it is found that any permission for construction of a building has been given in violation of any provision of this Act or rules or byelaws made there under or in the opinion of the State Government it is necessary in the public interest that the permission granted by the Municipality deserves to be cancelled or revised the State Government shall have power to cancel or revise such permission and on such cancellation or revision, as the case may be, any construction contrary to the order regarding cancellation or revision shall be deemed to be without permission and shall be dealt with in accordance with the provisions of this Act and the rules made there under. Provided that no such order shall be passed unless the aggrieved party has been given an opportunity of being heard.” 12. Sub-section (3) of Section 293 provides that any person who is aggrieved by the order of the Commissioner granting permission of erection of building has remedy of filing an appeal to the District Court within a certain period of time as provided therein. 13. As per section 299-A, State Government is empowered there to cancel or revise permission for construction of a building if it finds that any permission for construction of a building has been given in violation of any provisions of the Act or Rules or bye-laws made thereunder or the State Government is of the opinion that it is necessary in public interest that the permission granted by the Corporation deserves to be cancelled or revised. 14. The Supreme Court in the case of Whirlpool Corporation (supra) has held that availability of alternative remedy is not a constitutional bar to the High Court's jurisdiction but is a self-imposed restriction. 14. The Supreme Court in the case of Whirlpool Corporation (supra) has held that availability of alternative remedy is not a constitutional bar to the High Court's jurisdiction but is a self-imposed restriction. It has further been held that alternative remedy would not operate as a bar in atleast three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; or (iii) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged. 15. The present case does not fall in any of the aforesaid exceptions which have been mentioned by the Supreme Court in the case of Whirlpool Corporation (supra) 16. When the factual matrix attending the present case is tested on the anvil of the aforesaid statutory provisions, it is obvious that neither the remedy u/S. 293(3) nor u/S. 299-A has been availed by the petitioner before the District Court or State Government. The petitioner has straightway rushed to this Court by filing present petition without availing the alternative efficacious remedies stated above. 17. Accordingly, without commenting upon merits of the case, this Court deems it expedient to dispose of t his petition relegating the petitioner to avail the aforesaid alternative statutory remedy.