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2025 DIGILAW 411 (MP)

Sudhir Jain v. Indore Municipal Corporation

2025-07-21

BINOD KUMAR DWIVEDI, VIVEK RUSIA

body2025
ORDER : The petitioner has filed this present petition under Article 226 of the Constitution of India seeking quashment of order dated 14.06.2022 whereby, the Indore Municipal Corporation has refused to grant building permission of Plot No.3 at Neelkanth Colony, Indore, admeasuring 1444 sq.ft. ("hereinafter referred to as "Plot No.3") on the ground that the subject plot is situated over the underground drainage. 2. Facts of the case, in short, are as under:- 2.1 The petitioner had purchased the aforesaid plot in an e-auction conducted by the respondent Nos. 2 and 3. Thereafter, a sale certificate dated 14.03.2022 was issued in favour of the petitioner. A registered sale deed dated 26.03.2022 conferred the title on the petitioner for which he incurred the expenses of Rs. 5,01,600/-. 2.2 The petitioner applied for permission to construct a house. The Indore Municipal Corporation has rejected the building permission on the ground that no construction is permissible within 9 meters of the plot because the drainage is passing below the plot of the petitioner. Hence, the petitioner has approached this Court by way of writ petition. 3. The Indore Municipal Corporation filed a return by submitting that the petitioner has an alternate remedy. It is also submitted that one Smt. Rajkumari Sharma has also filed W.P. No.6672/2020 seeking quashment of the order dated 27.12.2019 whereby she was also refused to grant permission to construct the fuel station on the subject plot on the same ground. According to the Indore Municipal Corporation, as per Chapter-VI of Indore Development Plan, 2021, both sides of the water body, whether river or drainage shall be kept open. As per Rule 50(b) of the Bhumi Vikas Rules, "construction of a building on the land which is within the distance of 9 meters from the highest water mark is not permissible". Therefore, no permission can be granted either to the petitioner or to Smt. Rajkumari. 4. The respondents Nos. 2 and 3 also filed the return by submitting that they conducted the proceedings under the SARFAESI Act. The answering respondents duly provided all the necessary information and documents to the petitioner before auction, and after being satisfied with all documents and necessary facts, the petitioner participated in the auction proceedings. Now the petitioner is estopped from raising any objection. 5. The answering respondents duly provided all the necessary information and documents to the petitioner before auction, and after being satisfied with all documents and necessary facts, the petitioner participated in the auction proceedings. Now the petitioner is estopped from raising any objection. 5. The petitioner filed the rejoinder and denied the aforesaid allegations by submitting that Plot No.3 is registered as a residential plot, which is evident from the search report; hence, he purchased bona fidely with an intention to construct a residential house. The auction proceedings are liable to be quashed and his money be returned back if he cannot get permission to construct the house. 6. During pendency of this petition, the petitioner was directed to implead Smt. Rajkumari as respondent No.5, who mortgaged this plot No.3 with respondents No.2 and 3 in order to get the financial assistance/ loan and in default of payment of the loan, respondents No.2 and 3 have sold the same to the petitioner. 7. After notice, the respondent No.3 filed the reply disclosing the fact that the Indore Municipal Corporation vide registered exchange deed No. A-1/4094 dated 23.08.1978 gave this Polt No.3 to the predecessor-in-title. The Indore Municipal Corporation clearly mentioned in the exchange deed that Plot No.3 has been created by filling of Nallah. Later on, the Hindustan Petroleum Corporation Ltd. allotted a license for a retail outlet to her son, but the Indore Municipal Corporation has declined to grant the permission. We have heard learned counsel for the parties and perused the record. 8. The Respondents No.. 2 and 3, before taking the Plot No.3 on mortgage, obtained a Search Report from Shri Akhilesh Mishra, Advocate, which is placed on record by the petitioner by way of application for taking documents on record. As per search report, Registered Exchange Deed No.1-A/4097 dated 23.08.1978 was executed between Mr. Babulal s/o Mr. Mardan Singh and Indore Municipal Corporation through its Commissioner. Shri Babulal was the owner of piece of land in Yati colony which the Indore Municipal Corporation wanted for the construction approach road to over bridge, therefore, took the aforesaid land and by way of exchange from a plot No.3. After the death of Babulal, his wife Mrs. Laxmibai, sons Ms. Dilip, Mr. Mukesh, Mr. Kailash, Mr. Anil and daughter Ku. Krishna, Mrs. Sakhibai, and Mrs. Usha become the joint owners. After the death of Babulal, his wife Mrs. Laxmibai, sons Ms. Dilip, Mr. Mukesh, Mr. Kailash, Mr. Anil and daughter Ku. Krishna, Mrs. Sakhibai, and Mrs. Usha become the joint owners. Thereafter, they executed a power of attorney No. 4-A/19 dated 20.09.1989 in favour of Mr. Rajendra Kumar Jain for all work acting in respect of the aforesaid property. The power of attorney holder, Mr. Rajendra Kumar Jain, executed a sale deed in favour of Mrs. Rajkumari. Shri Akhilesh Mishra has opined that there is no dispute in respect of the title of Laxmibai w/o Babulal and others. On the basis of this title, the respondents No.2 and 3 sanctioned the loan of Rs. 50,50,327/- jointly in the name of Arun Sharma and Mrs. Rajkumari Sharma on 29.08.2017 by taking the Plot No.3 on mortgage. 9. Since there was a default in payment of the loan, the account of Mrs. Rajkumari Sharma was declared NPA and by way of proceedings under the SARFAESI Act, the petitioner purchased the land for Rs. 48,70,000/- from respondent Nos. 2 and 3. In physical possession notice dated 26.06.2020 it is specifically mentioned that plot No.3 is an immovable property situated in a residential area and for residential purposes, therefore, the petitioner purchased this property as residential property. In the auction notice also, the respondent Nos. 2 and 3 have invited the bid projecting this plot No.3 as residential purpose in residential area, therefore, the petitioner is suffering because Plot No.3 was initially given to Mr. Babulal s/o Mr. Mardan Singh by way of exchange by the Indore Municipal Corporation. 10. The LRs. of Mr. Babulal executed the sale deed in favour of Mr. Rajendra Kumar Jain and Shri Rajendra Kumar Jain sold the land to Mrs. Rajkumari as a residential plot. Respondent Nos. 2 and 3 have sold the land to the petitioner as a residential plot. Smt. Rajkumari Sharma/ respondent No.5, who mortgaged this property, took a loan by mortgaging this without disclosing that no construction is permissible in the said land. The Respondent Nos. 2 and 3 kept this property in mortgage without verifying that it is of no use, as no construction permission can be granted because a drainage/ Nallah is flowing below. Smt. Rajkumari took the loan of Rs. 50,50,327/- and did not repay. Therefore, she got the price of the land by way of loan. The Respondent Nos. 2 and 3 kept this property in mortgage without verifying that it is of no use, as no construction permission can be granted because a drainage/ Nallah is flowing below. Smt. Rajkumari took the loan of Rs. 50,50,327/- and did not repay. Therefore, she got the price of the land by way of loan. Subsequently, Tata Capital Housing Finance sold the subject plot by way of auction and got its money back. And the petitioner came into the trap, who innocently purchased this property. Since it was a residential plot, the respondents Nos 2 and 3 valued it as a residential plot to give Rs. 50 lacs. No search was conducted from the record of the Municipal Corporation to verify whether the construction of a residential house is permissible or not. Plot No.3 cannot be treated as land for residential purposes unless the permission to construct a house/building is granted by the Municipal Corporation as per law. Therefore, every respondent individually is responsible for the problem of the petitioner, whose life savings have been invested in the construction of the house. 11. Right from the beginning, the Municipal Corporation ought not to have given this plot. No.3 in exchange because the Nallah is flowing below and no construction is permissible. Shri Rajendra Kumar Jain sold the land to Smt. Smt. Rajkumari tried to obtain permission to construct a retail outlet, but the permission was denied vide order dated 27.12.2019. Smt. Rajkumari Sharma had already obtained a home loan in the year 2017 when she came to know that no construction was permissible on the said plot. She became a defaulter, and Tata Capital Housing Finance has sold this property to the petitioner. 12. The exchange deed which is on record according to which the Indore Municipal Corporation was in need of the residential plot of Babulal situated which was situated in Yati colony for construction of approach road, therefore, in lieu of compensation, the land created after filling the Nallah in Neelkanth colony as Plot No.3 was given to him area 1444 sq.ft. 13. At that time, the market value of the land was assessed at Rs. 10925 @ 2185 sq.ft. Shri Babulal was the owner of the land area 2185 sq ft, whose market price was Rs. 10,925/-. 13. At that time, the market value of the land was assessed at Rs. 10925 @ 2185 sq.ft. Shri Babulal was the owner of the land area 2185 sq ft, whose market price was Rs. 10,925/-. The said land was also situated in the residential colony; therefore, Babulal was given the land in exchange as residential land by the Indore Municipal Corporation, and it was specifically mentioned that Nallah was filled up, and there was no Nallah. 14. Later on, if the Corporation has created an underground drainage that would not affect the interest of successors who purchased the said land as residential land. Therefore, it is for the corporation now to either give building permission to the petitioner or to acquire his property and pay the compensation as per the market value. The respondent/ Indore Municipal Corporation has explained the location of Nallah flowing below plot Nos.1, 2 and 3. The site map is reproduced below:- 15. In view of the above discussion, at this stage, the following directions are passed in favour of the petitioner:- (I) Let the Indore Municipal Corporation consider application of the petitioner for grant of building permission as a special case, considering facts and circumstances as stated above in totality, either to grant permission to the petitioner to construct the house, leaving that area of Nallah as setback or backspace. (II) If no permission can be granted, then acquire plot No. 3 for public purposes, as plot No.1 had been acquired. (III) or construct the pakka underground drainage so that the house can be constructed over the same without affecting the free flow. 16. The entire exercise be completed within a period of 60 days from the date of receipt of a certified copy of the order, and the compliance must be submitted to this court. 17. On the basis of the report submitted by the Indore Municipal Corporation, this court shall consider, if required, what alternate relief is liable to be given to the petitioner or the disposal of the writ petition finally.