Madhya Pradesh High Court
Kurban Hussain vs Indore Municipal Corporation on 7 May, 2018
Author: S.K. Awasthi
Bench: S.K. Awasthi
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
...1... WP.No.23497/2017 &
Conct. writ petitions
D.B.:Hon'ble Shri P.K. Jaiswal
Hon'ble Shri S.K. Awasthi, JJ.
Writ Petition No.23497/2017
KURBAN HUSSAIN & ORS.
Versus
INDORE MUNICIPAL CORPORATION & ANR.
********
Shri A.M. Mathur, Senior Advocate, with Shri A.
Dhanodkar, Advocate, for the petitioners.
Shri P. Kaurav, Senior counsel with Shri R. Tiwari,
Advocate for the respondent No.1 - Indore Municipal
Corporation.
Shri Rohit Mangal, Govt. Advocate for respondent
No.2/State.
********
Writ Petition No.8776/2018
ABHAY SHUKLA & ANR.
Versus
INDORE MUNICIPAL CORPORATION & OTHERS.
********
Shri A.M. Mathur, Senior Advocate, with Shri A.
Dhanodkar, Advocate, for the petitioners.
Shri P. Kaurav, Senior counsel with Shri M. Munshi,
Advocate for the respondent No.1 - Indore Municipal
Corporation.
Shri Rohit Mangal, Govt. Advocate for respondent
No.2/State.
********
Writ Petition No.2246/2018
JITENDRA JOSHI
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
...2... WP.No.23497/2017 &
Conct. writ petitions
Versus
INDORE MUNICIPAL CORPORATION & OTHERS.
********
Shri V. Dalal, Advocate, for the petitioner.
Shri P. Kaurav, Senior counsel with Shri Manoj Munshi,
Advocate for the respondents - Indore Municipal
Corporation.
********
Writ Petition No.1972/2018
BHANWAR LAL SINGH & ORS.
Versus
INDORE MUNICIPAL CORPORATION & OTHERS.
********
Shri A.M. Mathur, Senior Advocate, with Shri A.
Dhanodkar, Advocate, for the petitioners.
Shri P. Kaurav, Senior counsel with Shri M. Munshi,
Advocate for the respondents - Indore Municipal Corporation.
*********
Writ Petition No.1973/2018
Smt. MANORAMA PANDIT & ORS.
Versus
INDORE MUNICIPAL CORPORATION & OTHERS.
*********
Shri A.M. Mathur, Senior Advocate, with Shri A.
Dhanodkar, Advocate, for the petitioners.
Shri P. Kaurav, Senior counsel with Shri M. Munshi,
Advocate for the respondent No.1 - Indore Municipal
Corporation.
*********
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
...3... WP.No.23497/2017 &
Conct. writ petitions
Writ Petition No.3031/2018
SHRIGAUD VIDHYA MANDIR SANSTHA
Versus
STATE OF M.P.
********
Shri S. Pathak, Advocate, for the petitioner.
Shri Rohit Mangal, Govt. Advocate for respondent
No.1/State.
Shri P. Kaurav, Senior counsel with Shri Rishi Tiwari,
Advocate for the respondents No.2 & 3 - Indore Municipal
Corporation.
********
Writ Petition No.4524/2018
GOPAL PARETA & ORS.
Versus
INDORE MUNICIPAL CORPORATION & OTHERS.
********
Shri A.M. Mathur, Senior Advocate, with Shri A.
Dhanodkar, Advocate, for the petitioners.
Shri P. Kaurav, Senior counsel with Shri M. Munshi,
Advocate for the respondents No.2 and 3 - Indore Municipal
Corporation.
ORDER
(Passed on 7th day of May, 2018) PER P.K. JAISWAL, J:-
Since a common question of law is involved in these petitions to decide therefore, they are heard together and are being disposed of by this common order. For the sake of convenience, the facts are borrowed from W.P.No.8776/2018. HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...4... WP.No.23497/2017 & Conct. writ petitions
2. This is the fourth round of litigation.
3. The issue involved in these batch of writ petitions No.23497/2017, 1972/2018, 1973/2018, 4524/2018 and 3031/2018, is almost settled by the Hon'ble Supreme Court in the case of Ravindra Ramchandra Waghmare V/s. Indore Municipal Corporation reported as (2017) 1 SCC 667 . After the judgment in the case of Ravindra Ramchandra Waghmare V/s. Indore Municipal Corporation (supra), the Indore Municipal Corporation had undertaken a plan for widening of one of the major city road to connect two major bus terminals and a Railway station known as 'Sarvate Bus Stand to Gangwal Bus Stand Road', which passes through the area of the petitioners. After order dated 21.12.2017, passed by the Division Bench, a Writ Petition No.23497 of 2017 and other connected writ petitions were filed on the ground that the petitioners are the resident of Kadav Ghat, Main Road, Street No.2 and the aforesaid road on which the petitioners are residing connects with the road known as 'Machi Bazar' and width of the Machi Bazar in the Master Plan is 18 mtrs. and on the basis of the order passed by the Division Bench of this court in W.P.No.2164 of 2017 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...5... WP.No.23497/2017 & Conct. writ petitions (Mohd. Harun & Ors. V/s. State of M.P. & Ors.) decided on 21.12.2017, they are free to demolish the building as per Master Plan, 2021. It was also submitted that in the earlier round of litigation in W.P.No.2164 of 2017 the Kadaav Ghat, Street No.02 was not in issue and the prayer made therein was not to implement Master Plan, 2021.
4. According to the petitioners in W.P.No.23497 of 2017,, the Municipal Corporation in the garb of the order passed on 21.12.2017, are bent upon to demolish their houses situated in Street No.02, which is 18 meters wide, the learned writ court directed the petitioners in W.P.No.23497 of 2017 to furnish an advance copy to the learned standing counsel of the Municipal Corporation, Indore and till the next date of hearing, no coercive action shall be taken against them. On the next date, when the matter was listed, it was pointed out by the Indore Municipal Corporation that petitioners No.2, 3 and 6 were writ petitioners in those two writ petition (W.P.Nos.2164 of 2017 & 3985 of 2017). As per the Master Plan, 2021, itself the Municipal Authorities are carrying out the work of road widening from 'Sarvate Bus Stand to Gangwal Bus Stand' and the Division Bench has taken note of the alignment of the HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...6... WP.No.23497/2017 & Conct. writ petitions road and the Municipal Corporation prayed for vacating the ad- interim relief granted on 26.12.2017. As the matter was listed before the learned Single Judge and, therefore, it was directed to the Office to examine the case and list before the appropriate Bench. On 4.1.2018, the matter was listed before the Division Bench and it was pointed out that against the order dated 21.12.2017, passed in W.P.No.2164 of 2017 and W.P.No.3985 of 2017, Special Leave Petition have been filed and a prayer was made to defer the hearing till the matter is decided by Hon'ble the Supreme Court. Considering the aforesaid, hearing in W.P.No.23497 of 2017 and other connected matters were adjourned sine-die for hearing to await the decision of the Hon'ble Supreme Court and liberty was granted to the parties to seek hearing of the petition after decision of the proceedings by the Hon'ble Supreme Court. On 12.4.2018, the Hon'ble Supreme Court has dismissed the SLP (C) No (s).70/2018. Order dated 12.4.2018 reads as under :-
"We have heard learned counsel for the parties and perused the record.
We do not find any ground to interfere with the impugned order.
The special leave petitions are accordingly dismissed.
Application(s) for intervention are also dismissed. Pending applications, if any, shall also stand disposed of.
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...7... WP.No.23497/2017 & Conct. writ petitions On the request of the learned counsel for the parties, the matter was taken upon 19.4.2018. On 19.4.2018, it was pointed out by the learned counsel for the Municipal Corporation, Indore that some of the petitioners were party to the proceedings in the earlier round of litigation, which was decided on 21.12.2017 and as the SLP was dismissed, they prayed for dismissal of the writ petition. Considering the arguments of thelearned Senior counsel for the parties, we on 19.04.2018, vacated the stay order passed in W.P.No.23497 of 2017, W.P.No.1972 of 2018, W.P.No.1973 of 2018, W.P.No.3031 of 2018 and W.P.No.4452 of 2018 and fixed the matter for final disposal on 20.4.2018. Order dated 19.4.2018 reads as under :-
"Heard.
On 26.12.2017, it was pointed out that the petitioners are resident of Kadaav Ghat, Main Road, Street No.2 and the aforesaid road, on which the petitioners are residing, connects with the road known as "Machchi Bazar" and the width of the Machchi Bazar Road in the Master Plan is stated to be 18 Meters. It was also pointed out that on the basis of the order passed in Writ Petition No.2164/2017 wherein Kadaav Ghat, Main Road, Street No.2 was not in issue, but the respondents are bent upon to demolish their houses, in accordance with Kadaav Ghat, Main Road, which is of 24 meters width. The learned Writ Court passed an interim order directing that no coercive action shall be taken against the petitioners.
On 10.01.2018, it was pointed out by the learned HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...8... WP.No.23497/2017 & Conct. writ petitions Senior Counsel for the petitioners that against order dated 21.12.2017 passed in Writ Petition No.2164/2017 and Writ Petition No.3985/2017, Special Leave Petition was filed and the matter was listed for hearing, and therefore, hearing in this batch of writ petitions was deferred till final disposal of the SLP pending before the Hon'ble Apex Court. On 21.03.2018, liberty was granted to the parties to seek hearing of the petition, after decision of the proceedings by the Hon'ble Supreme Court.
On the last date of hearing, it has been pointed out by the learned Senior Counsel for the parties, that the Special Leave Petition filed against order dated 21.12.2017 in Writ Petition No.2164/2017 and Writ Petition No.3985/2017 has been dismissed, and at the request of learned Senior Counsel for the parties, the matter has been fixed for today i.e. 19.04.2018.
Shri A.M. Mathur, learned Senior Counsel for the petitioners has submitted that on 16.04.2018 in Writ Petition No.8776/2018, a Division Bench of this Court, after appreciating the provisions of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (herein after referred to as the Adhiniyam, 1973), Madhya Pradesh Municipal Corporation Act, 1956 and Madhya Pradesh Bhumi Vikas Rules, 2012 granted interim relief that no demolition of the buildings / structures in question shall be made till the next date of hearing; and that the aforesaid matter (Writ Petition No.8776/2018) has been fixed for 24.04.2018; and the issue involved in this batch of writ petitions is identical and similar to the aforesaid case, therefore, this batch of writ petitions be also listed on 24.04.2018.
Per contra, Shri Purushaindra Kaurav, learned Senior Counsel appearing on behalf of the Municipal Corporation Indore has drawn our attention to reply and additional reply filed by the respondent / Indore Municipal Corporation and submitted that earlier relatives of petitioner No.2 Akhtar H. Kanchwala s/o Ibrahim, petitioner No.3 Sartaz Bee w/o Abdul Gayyur and petitioner No.6 Rehana Bee w/o Abdul Gaffur (in Writ Petition No.23497/2017) and several other persons approached this Court vide Writ Petition No.3985/2017 with respect to the same properties, as in the present writ petitions. This material fact has been suppressed by them and in HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...9... WP.No.23497/2017 & Conct. writ petitions view of law laid down by the Apex Court in the matter of SJS Business Enterprises Private Limited v. State of Bihar reported in (2004) 7 SCC 166, the present batch of writ petitions is liable to be dismissed.
He further submitted that Writ Petition No.3985/2017 was filed by 274 petitioners praying for a relief inter alia to restrain the respondent - Municipal Corporation from demolishing the houses of the petitioners thereof (paragraph No.7 (iii) of Writ Petition No.3985/2017). It was also averred that "the petitioners are residing at the address mentioned above in the cause title .....".
He has further drawn our attention to Annexure R/7 (Writ Petition No.23497/2017) detail map filed along with reply dated 28.12.2017 by Shri P.S. Kushwah, Building Officer, Zone No.2 and Officer-in-Charge of the Case, Indore Municipal Corporation and submitted that House No.33, Nayapeetha of petitioner No.2 and House No.50 of petitioners No.3 and 6 were subject matter of previously dismissed Writ Petition No.3985/2017. The present writ petition is barred by the principles of res judicata and is liable to be dismissed.
He further pointed out that petitioner No.2 Akhtar H. Kanchwala's son Mustafa Kanchwala had earlier filed Writ Petition No.3985/2017 with respect to the same property and he was petitioner No.61 in the aforesaid writ petition. Similarly another son of petitioner No.2 namely Murtaja was petitioner No.65 in the aforesaid writ petition with respect to the same property. Similarly, petitioners No.3 and 6 namely Sartaz Bee and Rehana Bee have suppressed the fact that the subject property i.e. House No.50, Nayapitha was the subject matter of previously dismissed Writ Petition No.3985/2017. A number of detail instances has been given regarding suppression of fact of filing of earlier writ petition (s). On merit, he submitted that the respondent - Indore Municipal Corporation is carrying out road widening work from Sarvate Bus Stand to Gangwal Bus Stand. The alignment of stretch of the aforesaid road includes Sarvate Bus Stand - Hathipala, June Indore, Rawla - Guatampura - Chandrabhaga - Pandhrinath
- Machchi Bazar Chouraha - Kadaav Ghat - Naya Pitha - Kagdipura, Silawatpura - Biyabani Square - Gangwal Bus Stand. A Division Bench of this Court HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...10... WP.No.23497/2017 & Conct. writ petitions has taken note of the aforesaid alignment in paragraph 6 of order dated 21.12.2017 passed in Writ Petition No.2164/2017 and Writ Petition No.3985/2017.
The petitioners' constructions are situated on the stretch of road which is proposed to be 24 meter wide in Indore Development Plan, 2021. The petitioners are unnecessarily trying to create confusion. The subject constructions are situated on the stretch of the road between Machchi Bazar Square to Kagdipura junction, which is proposed to be 24 meter wide. Merely giving different names like Kadaav Ghat Road No.2, 3 or 10 does not make any difference. The Town & Country Planning Department vide letter dated 26.12.2017 (Annexure R/10) has clarified that the width of the road from Machchi Bazar Square to Kagdipura Road via Kadaav Ghat and Nayapeetha is 24 meters. He lastly submitted that from 31.12.2017 till 02.01.2018, a total of 106 families have been allotted flats in three townships. The petitioner No.1 Kurban Hussain s/o Haafez Mohammad and his two sons have also got three flats allotted in the Omex City.
In view of dismissal order dated 21.12.2017 passed in Writ Petition No.2164/2017 and Writ Petition No.3985/2017, and dismissal of Special Leave Petition No.70/2018 on 25.01.2018, it is prayed that the present batch of writ petitions be dismissed. To counter the aforesaid, Shri A.M. Mathur, learned Senior Counsel for the petitioners has submitted that the area in question is covered by order dated 16.04.2018 passed in Writ Petition No.8776/2018. He further submitted that the houses in question are Central Area (Madhya Kshetra), and therefore, interim relief granted by this Court on 16.04.2018 in Writ Petition No.8776/2018 may be continued in this batch of writ petitions.
On due consideration of the aforesaid, arguments advanced by the learned Senior Counsel for the parties, so also the averments made in the reply and additional, we direct the Office to list this batch of writ petitions along with Writ Petition No.8776/2018 for analogous hearing on 24.04.2018.
As per the contentions of the learned Senior Counsel for the parties, order dated 16.04.2018 passed in Writ Petition No.8776/2018 also covers the relief claimed in this batch of writ petitions, and therefore, after dismissal of SLP by the Hon'ble Supreme Court, HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...11... WP.No.23497/2017 & Conct. writ petitions no case is made out to continue the interim order passed on 26.12.2017. The interim order passed earlier stands vacated.
List on 24.04.2018."
5. The submission of the learned Senior counsel for the petitioners in W.P.No.8776 of 2018 that Section 305 of the M.P. Municipal Corporation Act, 1956 (hereinafter referred as 'the Act of 1956') cannot over-ride the Master Plan, 2021 of Indore City, prepared under Section 17 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter referred as 'the Adhiniyam of 1973') and brought into operation under Section 19(5) of the said Adhiniyam. He has drawn our attention to Rules 4, 7(2) and 13 of the M.P. Bhumi Vikas Niyam, 2012 (hereinafter referred as 'Rules of 2012') and submitted that Rule 4 and 13 prohibit the existing permission, sanction and approval of the building and structure in the Central Area (Madhya Kshetra). He also submitted that the regulation 6.3 Clause (18), Chapter VI of Master Plan of Indore City, 2021 , the proposed widening road in respect of building and structure of (Madhya Kshetra) Indore City, which are existing prior coming into force of Rules of 2012, will not be applicable. Their contention is that on the basis of proposed widening of roads, no demolition of buildings and structure, HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...12... WP.No.23497/2017 & Conct. writ petitions which are existing prior to 1.6.2012 can be done under the Rules of 2012 and prayed for grant of ad-interim relief, restraining the respondents from demolishing the existing construction on account of widening road as proposed in the Master Plan of Indore City, 2021.
6. Considering the aforesaid, an interim relief that no demolition of the buildings / structure in question shall be made till the date of hearing was granted and thereafter, the matter was posted for 19.4.2018.
7. On behalf of the Municipal Corporation, Indore, it was pointed out that this argument was advanced in Special Leave Petition (C) No(s.) 70/2018 and the Hon'ble Supreme Court, after appreciating the aforesaid arguments, dismissed the Special Leave Petition and, therefore prayed for vacating the stay order. Considering the fact that a detailed reply has been filed, we heard the learned Senior counsel for the parties at length on 24.4.2018 and 25.4.2018.
8. As per reply of Indore Municipal Corporation in W.P.No.8776 of 2018, petitioner No.1 is not the owner of the house and no notice has been served upon him. Even there is no construction within the road width of 24 mtrs abutting HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...13... WP.No.23497/2017 & Conct. writ petitions house No.5-6 Mahal Kacheri as the said house is outside the regular public street line not required to be removed and so far the petitioner No.2 is concerned his house which was falling beyond the public street has already been removed under Section 305 of the Act of 1956 and validity has been upheld by the Apex Court in SLP No.70 of 2018 ( Farida & Ors. V/s. State of M.P. & Ors.). Under sub-clause (18) of Clause 6.3 of the Indore Development Plan, 2021, to contend that there is prohibition to apply the proposed width of the road in Central Area on existing building / infrastructure unless application is made for permission for construction of new building after demolition of existing building, then the building permission shall be granted consider the propsed width of the road.
9. During the pendency of the Writ Petition No.23497 of 2017 and after dismissal of Special Leave Petition (C) No(s).70/2018 on 12.4.2018, Writ Petition No.8776 of 2018 has been filed by one Abhay Shukla and Abdul Samad and prayed for the following relief :-
"It is therefore, most humbly prayed by the petitioners that by a suitable writ, order or direction this Hon'ble Court may be pleased to :-
(i) A declaration that the roads and buildings HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...14... WP.No.23497/2017 & Conct. writ petitions existing on the date the Master Plan came into force on 1.1.2008 are exempt from the proposed widening of roads in the master plan, the present width of the road in the central area will not disturb by the municipal corporation in the central area.
(ii) As per Bhumi Vikas Rule, 4,7,13 the building existing as on 1.1.2008 shall not be governed by Bhumi Vikas Rule 2012 and Regulation 6.3.(18).
(iii) An injunction should be granted against the Municipal Corporation and its authorities, Commissioner, building officer and other Officer not to widen the existing roads in the central area and particularly the roads mentioned in schedule 3.5, Serial No.20, Serial No.42, Serial No.47 , Serial No.54.
(iv) Any other relief which can be granted in the facts of this case.
(v) Allow this petition with costs."
10. The stand of the Municipal Corporation is that the condition of sub-clause (18) of Clause 6.3 applies only in the case of proposed width of road and not in case of the existing width of the road.
11. The Indore Development Plan, 1991 and Indore Development Plan, 2021, known as "Master Plan of City"
prepared under the provisions of the Adhiniyam of 1973. The 1991 Plan was framed on 21.3.1975 and was enforced from 21.3.1975 till 31.12.2007. The Indore Development Plan of 2021 was prepared, sanctioned and notified by the State Government 1.1.2008, on the basis of revised planning area as notified on 28.6.2002. The Development Plan was prepared HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...15... WP.No.23497/2017 & Conct. writ petitions and sanctioned by the State Government after due compliance of the procedure provided in Chapter IV of the Adhiniyam of 1973. The Development Plan was prepared by the Committee as contemplated under Section 17-A of the Adhiniyam, 1973 and contains the pattern of 'arterial roads and major roads' within the planning area as provided under Section 17(c) of the Adhiniyam, 1973.
12. Chapter IV of the Adhiniyam, 1973 provides for planning areas and preparation development plans comprising in Section 13 to 19 of the Adhiniyam, 1973. This Chapter is a complete code so far preparation of development plan of the city within planning area. Section 19(5) of the Adhiniyam, 1973 provides that the Development Plan shall come into operation from the date of publication in the gazettee and from such date shall be binding on all development authorities constituted under the Adhiniyam, 1973 and all 'Local Authorities' functioning within the planing area. Sub-section 2
(k) of the Adhiniyam, 1973, defines 'Local Authority' means a Municipal Corporation constituted by or under the Madhya Pradesh Municipal Corporation Act, 1956. Section 291 of the Municipal Corporation Act, 1956 (in short 'the Act of 1956') HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...16... WP.No.23497/2017 & Conct. writ petitions speaks about Town Planning Scheme to be prepared by the Corporation. Section 291 (1) (e) of 1956 of the Act provides for 'Street Line and Building Line on either side or both sides of any street existing or proposed'. Such scheme shall be given effect after seeking objections and suggestions from the public. The Corporation is required to prepare a town planning scheme in conformity to the Article 243W which give mandate to the Corporation for the preparation of plans for economic development and social justice and to discharge the responsibility provided under 12th Schedule of the Constitution of India. However, Section 292 of the Act of 1956 put a restriction on Corporation to prepare such a Town Planning scheme under Section 291 of the Act of 1956 when a scheme has already been sanctioned under the Provisions of the Town Improvement Act since repealed by the Section 87(1)(c) of the Adhiniyam, 1973.
13. The Hindi version of Sub-clause (18) of Clause 6.3 reads as under :-
"18. e/; {ks= esa n'kkZ;s x;s ekxksZ dh izLrkfor pkSM+kbZ fo?keku Hkouksa @lajpukvksa ij ykxw ugh gksxhA tc orZeku esa fufeZr Hkou rksM+dj ubZ vuqKk gsrq vkosnu fd;k tk;sxk rc izLrkfor ekxZ pkSM+kbZ ds vk/kkj ij vuqKk iznku dh tk,xhA"
14. The condition of Sub-clause 18 of Clause 6.3 applies HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...17... WP.No.23497/2017 & Conct. writ petitions only in case of the proposed width of the road and not in the case of existing width of the road. The Master Plan 1975-91 under Chapter 13 deals with the Central Area of the city and Clause 13.42 provided for the roads in Central Area. As per Clause 13.42, the Ring - 1 and Ring - 2 has been defined as under :-
"Ring - 1. The horizontal ring follows the alignment of existing Subhash Marg its extension through Bhandari State Mill Square, Patthar Godam Road, Warehousing Road, Raoji Bazar Road, Proposed Road through South Toda, Kadav Ghat, Biyabani, Ganeshganj connecting Subhash Marg near Khalsa School.
Ring -2 It follows the alignment of MR-2 passing along Fort Road, Lohar Patti, Biyabani, Lalbagh Road MR-3 along river passing through Juni Indore, North South and Toda. MR-5 passing through Rambagh Bhisti Mohalla, Juna Risala and Fort area."
15. It has also been provided in the Master Plan, 1975-91 that under Clause 13.42 the implementing agency will however ensure dislocation of population is the minimum and that in case of any dislocation occurs, suitable alternatives are found for those are shifted as far as possible. The Master Plan in Clause 13.43 provided the minimum and desirable road width as under :-
Road Description Proposed Road Width HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...18... WP.No.23497/2017 & Conct. writ petitions Minimum Desirable Ring -1 80' (24 ½ m) 120' (37 m) Ring -2 80' (24 ½ m) 120' (37 m) Approach Road 60' (18 ½ m) 80' (24 ½ m)
16. The plan specifically provided that these road width will be maintained within the Central Area and the planing unit 1, road width outside the units will be guided by the road width proposed in Chapter X.
17. It is also been provided at page 216 of the Master Plan 1975-91 that :
"Road width prescribed here does not include space for footpath and casual parking for scooters, cycles etc. Consideration for movement of space required will have to be examined while granting permission in individual cases. These guidelines will worked as interim arrangement till such time as detailed scheme or regular line of street is framed and adopted as a part of the follow-up action in Development proposal."
No building permission of any sort whether temporary or permanent from the ground-up or by projection will be given within the minimum prescribed road width".
18. That Clause 13.44 of the Master Plan 1975 - 91 has also provided that :
Road Widening Road widening particularly in Central area, the intensity of building is very high is always very expensive and it tends to dis-locate large number of persons and activities at the time of widening HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...19... WP.No.23497/2017 & Conct. writ petitions Number of roads proposed for widening has therefore been kept minimum. Only those roads which form part of the two rings mentioned above are proposed to be undertaken for widening while the remaining roads are proposed to be prescribed under Deferred Street Scheme."
19. That, in view of above specific provisions and the width of the road as provided for Ring - 1 and Ring - 2 as 80' (24 ½
m) minimum and 120' (37 m) as desirable, the minimum width continued to be followed in the Indore Development Plan 2021 which came into operation from 1.1.2008 as existing width of the road. Therefore, the width of the roads in question in the present petition were the same even in the Master Plan 1975- 91 which came into operation w.e.f. 21.3.1975. Thus, on the date of the coming into operation of the present Master Plan 2021 w.e.f. 01.1.2008, the minimum width of the road in question was 80' (24 ½ m). Therefore, the sub-clause (18) of Clause 6.3 of Indore Development Plan 2021 is not applicable where the minimum width of the road was already in-existence as 80' (24 ½ m).
20. As per the Master Plan 1975-91, the desirable width of these roads in question was 120' (37 m) whereas in the Indore Development Plan 2021 the desirable width 120' (37 m) has not been mentioned. Therefore, the width of the road in HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...20... WP.No.23497/2017 & Conct. writ petitions question as 80' (24 ½ m) continued to be existed since 1975. Therefore, the contention of the petitioner that width of 80' (24 ½ m) of the roads in question is the proposed width has no merit and substance as these are the existing width of the roads since 1975.
21. That, the Master Plan 1975 was binding upon the Respondent No.1 under Section 19(5) of the Adhiniyam of 1973. Therefore, the respondent No.1 - Municipal Corporation started implementation of the Master Plan 1975-91 immediately after coming into operation on 21.3.1975 and thereafter accorded building permission considering minimum width of the existing road as 80' (24 ½ m) for the buildings to be constructed on Ring-1 and Ring -2 roads. As per building permissions granted by the respondent No.1 prior to 1.1.2008, ie., before coming into operation of Indore Development Plan 2021, the width of the road prior to Indore Development Plan 2021, came into operation was 80' (24 ½ m) and therefore, these roads were existed as on the date of commencement of operation of Master Plan 2021 and hence the sub-clause (18) of the Clause 6.3 has no application in the present case.
22. The Indore Municipal Corporation in its reply quoted 11 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...21... WP.No.23497/2017 & Conct. writ petitions examples by which building permission was granted much prior to coming into operation of Indore Development Plan, 2021, on the basis of the width of the road as 80 Ft (24 ½) mtrs. Therefore, the width of the road in question as on the date of coming into operation of the Indore Development Plan, 2021 is 24.38 mtrs. Sub-clause (18) of the Clause 6.3 of Indore Development Plan, 2021 has no application in case of existing width of the road.
23. According to the Indore Municipal Corporation, the issue regarding illegal building / construction was raised in the case of (Farida & Ors. V/s. State of M.P. & Ors.) in SLP (C) No(s). 70/2018 arising out of the order dated 21.12.2017 passed in W.P.No.2164 of 2017. The petitioners of SLP had raised the specific plea prominently regarding applicability of Clause 6.3(18) of the Indore Development Plan, 2021 to contend that proposed width of the road does not apply of existing building / infrastructure in Central Area in the SLP in synopsis at Page No.(L) and also annexed a copy of the extract of clause No.6.3(18) as Annexure P/1 at page no.49 of the SLP. The petitioner in SLP had also raised a specific ground on applicability clause No.6.3(18) in the grounds No.f(b)(iii) at HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...22... WP.No.23497/2017 & Conct. writ petitions page No.33 of the SLP.
24. It is submitted that during the course of arguments the attention of the Hon'ble Supreme Court was drawn to Annexure P/1 extract of Clause 6.3 (18) at page 49 of the SLP by the petitioners, which was countered by the respondent No.1 by drawing the attention of the Hon'ble Supreme Court at page No.60 to 64 of the counter affidavit of the respondent No.4 which is extract of Indore Development Plan, 1991 to contend that the minimum width of the roads in question was 80' (24 ½ m) and desirable width was 120' (37 m) since 21.3.1975 when the Indore Development Plan 1975-91 came into operation, therefore, the width of 80' (24 ½ m) was existed on the date of coming into operation of Indore Development Plan, 2021 on 1.1.2008, therefore, clause 6.3(18) is not applicable. From the aforesaid it is clear that Sub-clause (18) of Clause 6.3 applies in case of proposed road whereas in the present case the width of the road is minimum 80' (24 ½ m) and desirable width 125' (37 m) as per Master Plan, 1975-91, which came into operation w.e.f. 21.3.1975 and thereafter building permission was granted on the basis of minimum width of road considering 80' (24 ½ m). HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...23... WP.No.23497/2017 & Conct. writ petitions
25. It is not in dispute that under Section 19 of the Adhiniyam of 1973, the Development Plans sanctioned by the State Government are binding on all development authorities and local authorities. Therefore, the Master Plan 1975-91, which had provided minimum width 80' (24 ½ m) and desirable width was 120' (37 m) is binding on respondents and since this was existing width on the date of coming into operation Indore Development Plan, 2021, therefore, the respondent is duty bound to implement the Master Plan for the convenience of public at large.
26. It was also contended by the learned Senior counsel for the petitioners that the existing building as defined in Rule 4 of Rules of 2012 cannot be demolished, even if it is illegal building or constructed without proper building permission under the prevailing Rules and Regulations.
27. Per contra, the submission of learned Senior counsel for the Municipal Corporation that the petitioners have tried to misread the English version of Rule 4 whereas Hindi version make it amply clear that only those buildings will be considered as existing buildings, which are not covered under any provisions of Development Plan.
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...24... WP.No.23497/2017 & Conct. writ petitions
28. In order to resolve the linguistic ambiguity between the two provisions of law, ie., the English version and Hindi version of Rule 5 of M.P. Bhumi Vikas Niyam, 1984 and Rule 4 of M.P. Bhumi Vikas Niyam, 2012, it will be apt to quote both the Rules below, which reads as under :-
Rule 5 of M.P. Bhumi Vikas Niyam, 1984 Rule 5 of M.P. Bhumi Vikas Rules, 1984 e-iz- Hkwfe fodkl fu;e 1984 (English Version)
5. Existing Building.- Nothing in 5- fo?keku & Hkou bu fu;eksa esa nh xbZ fdlh these rules shall require the Hkh ckr esa fdlh {ks= dh fodkl ;kstuk esa micaf/kr laiw.kZ ifjlhekvksa rFkk fucZU/kuksa ds demolition, alteration, or v/;/khu jgrs gq,] ml rkjh[k dks ftldk fd abandonment of a building existing bu fu;eksa ds lqlaxr micU/k izo`Rr gks] fdlh on the date on which the relevant fo?keku Hkou ds of/kZr Hkkx dks fxjkus] mlesa provisions of these rules come into ifjorZu djus ;k mldk ifjR;kx djus dh u force nor prevent continuance of rks rc rd mis{kk dh tk;sxh vkSj u gh fdlh the use or occupancy of an existing fo?keku Hkou ds mi;ksx ;k miHkksx dks pkyw building unless in the opinion of j[kus ls jksdk tk;sxk] tc rd fd izkf/kdkjh ds er esa ,sls Hkou ;k mlds Hkkx ls lehiorhZ the Authority, such building or laifRr dh lqj{kk dks ;k Hkou ds vf/kHkksfx;ksa dh portion thereof constitute a hazard lqj{kk dk [krjk u gksA to the safety of the adjacent property or to the safety of the occupants of the building itself, subject to the over all limitations on restrictions provided in the Development Plan for any area Rule 4 of M.P. Bhumi Vikas Niyam, 2012 Rule 4 of M.P. Bhumi Vikas Rules, 2012 e-iz- Hkwfe fodkl fu;e 2012 (English Version)
5. Existing Building:- Nothing in 4- fo?keku Hkou & Hkou bu fu;eksa esa nh xbZ these rules shall require the fdlh Hkh ckr esa fdlh {ks= dh fodkl ;kstuk esa micaf/kr laiw.kZ ifjlhekvksa rFkk fucZU/kuksa ds demolition, alteration, or v/;/khu jgrs gq,] ml rkjh[k dks ftldks fd abandonment of a building existing bu fu;eksa ds lqlaxr micU/k izo`Rr gks] fdlh on the date on which the relevant fo?keku Hkou ds of/kZr Hkkx dks fxjkus] mlesa provisions of these rules come into ifjorZu djus ;k mldk ifjR;kx djus dh u force nor prevent continuance of rks rc rd mis{kk dh tk;sxh vkSj u gh fdlh the use or occupancy of an existing fo?keku Hkou ds mi;ksx ;k miHkksx dks pkyw HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...25... WP.No.23497/2017 & Conct. writ petitions building unless in the opinion of j[kus ls jksdk tk;sxk] tc rd fd izkf/kdkjh ds the authority, such building or er esa ,sls Hkou ;k mlds Hkkx ls lehiorhZ laifRr dh lqj{kk dks ;k Hkou ds vf/kHkksfx;ksa dh portion thereof constitute a hazard lqj{kk dk [krjk u gksA to the safety of the adjacent property or to the safety of the occupants of the building itself.
29. There is difference in the English version and Hindi version of Rule 4. The English version is translation of Hindi version and the Hindi being official language of the State of Madhya Pradesh shall prevail upon the English version as held by the Full Bench in the case of Technofab Engineering Ltd V/s. Bharat Heavy Electrical Ltd, 2015 (4) MPLJ 426, wherein Full Bench relied upon another judgment of the Full Bench in the case of Mangilal & Anr. V/s. Board of Revenue of M.P. & Ors., 1983 MPLJ 254 and held that in Madhya Pradesh in case of doubt Hindi version shall prevail over English.
30. Rule 7(3)(a) of the Rules of 2012, has conferred power upon to the Building Officer to issue as and when necessary notices or order to remove illegal or unsafe construction. It is further provided that under Section 307 of the Act of 1956, the Municipal Corporation has authority to remove any construction or part of construction which is illegal or constructed without proper permission as may be required HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...26... WP.No.23497/2017 & Conct. writ petitions under applicable Rules and Regulations. The provisions of the Rule 4 of Rules of 2012 have no applicability in case of illegal construction or construction in violation to the building permission. The petitioners have misinterpreted the Rule 4 of Rules of 2012 to contend that this rule is also applicable in case of illegal, un-authorized and construction in violation of building permission. The power conferred upon the respondent No.1 under substantive law cannot be diluted by the Rules of 2012. Section 307 of 1956 Act have conferred the power upon the Municipal Corporation to remove the illegal construction, therefore, same cannot be modified or diluted by executive orders or Rules made under any other law as Rules of 2012 have been framed under Section 85 of the Adhiniyam of 1973. The Corporation is removing the part of the building or part of the projection, which is beyond the existing street line, as the same has already been vested in the Corporation under Section 305 of the Act of 1956. Therefore, the contention of the petitioners has no merit as the right of the Corporation to remove the portion of building or part of projection beyond the regular street line has been upheld by the Supreme Court in the case of Ramchandra Waghmare V/s. Indore Municipal HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...27... WP.No.23497/2017 & Conct. writ petitions Corporation (supra). The Apex court in the case of (Farida & Ors. V/s. State of M.P. & Ors.) in SLP (C) No(s). 70/2018, arising out of the order dated 21.12.2017 passed in W.P.No.2164 of 2017, has upheld the order of this court on 12.4.2018.
31. In view of the aforesaid, the Municipal Corporation has authority to remove the part of the building or part of the projection falling beyond the regular street. There is no dispute that the Development Plan as sanctioned by the State Government under Section 19(5) of the Adhiniyam of 1973, is binding upon the development authority and local authority from the date of publication in the official gazette.
32. It is also not in dispute that the Building Officer has been conferred powers and duties under Rule 7 of the Rules of 2012, which under Rule 7(3) (a) includes to issue as and when necessary all necessary notices or orders to remove illegal or unsafe construction. In addition to powers conferred under Rule 7 (3) (a) of the Rules of 2012, the respondent has also been conferred power under Section 305 and 307 of the Act of 1956 for removal of the constructions falling beyond regular street lines or construction without proper permission or illegal HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...28... WP.No.23497/2017 & Conct. writ petitions construction.
33. Rule 13 of the Rules of 2012, is basically a saving clause which saves the development / building permission issued prior to these Rules. Therefore, in case building permission has been granted prior to coming into force of these Rules under any other Rules or laws prevailing at that time, the same shall be valid and effective.
34. A bare reading of Rule 4 along with Rule 13 makes it amply clear that in the case of existing building which has been constructed in accordance to any permission granted prior to coming into force of these Rules under any other law, rules or regulations prevailing then in that case all such existing construction shall not be demolished unless such building or portion thereof constituted, hazardous to the safety of the adjacent property or to the safety of the occupants of the building. It is submitted that in case of road widening, the respondent No.1 is not demolishing the building but only removing such portion of building or the projection part which is falling beyond regular street line which has been vested in the Corporation by virtue of Section 305 of the Act of 1956 of which validity has been upheld by Hon'ble the Supreme Court HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...29... WP.No.23497/2017 & Conct. writ petitions in the case of Ravi Ramchandra Waghmare (supra).
35. In the case in hand, the width of the roads in question was 80' (24 ½ m) prior to 1.1.2018 when Indore Development Plan, 2021 came into operation and on the basis of road width of 80' (24 ½ m) building permission have been granted since 1975 which establish the fact that width of road 80' (24 ½ m) was in existence much prior to coming into operation of Indore Development Plan, 2021.
36. The width of the roads Machhi Bazar, Chandra Bhaga, Raoji Bazar, Kodaav Ghat as 80' (24 ½ m) are not the proposed width, but were in existence much prior to coming into force the Indore Development Plan 2021 w.e.f. 1.1.2008. As per Master Plan 1975-91, which came into operation w.e.f. 21.3.1975 the width of these roads were minimum 80' (24 ½
m) and desirable width 120' (37 m) and thereafter all building permission have been granted on the basis of minimum width of road as provided in Master Plan, 1975 - 1991. Therefore, sub-clause 18 of Clause 6.3. has no applicability in respect of the roads in question because of existence of width of these roads more than 80' (24 ½ m) since 1975.
37. The Master Plan or Indore Development Plan, 2021 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...30... WP.No.23497/2017 & Conct. writ petitions sanctioned under Section 19(5) is an executive exercise whereas Section 305 being substantive law is creature of legislation. It is well settled principle of law that any law promulgated by the legislature cannot be diluted or withdrawn or modified by any executive act. The Supreme Court in case of Ravi Ramchandra Waghmare (supra) has upheld the validity of Section 305 of the Act of 1956. Therefore, the Development Plan cannot over ride the provisions of Section 305 which have been promulgated by the legislature. Therefore, under any circumstances, the substantive law shall prevail over subordinate rules and regulations including Master Plan.
38. The respondents are not demolishing any building or construction whether it is constructed with or without permission or whether such construction is in violation of applicable rules and regulations. In fact, the respondents are only removing that much of part of building or projection which is falling beyond public street and the land to such extent has been vested in the Corporation by virtue of Section 305 of the Act of 1956.
39. Section 66(1)(y) of the Act, 1956 mandates the HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...31... WP.No.23497/2017 & Conct. writ petitions Corporation to abide by the provisions of any other law. Therefore, both the Adhiniyam, 1973 and the Act of 1956 mandates the Corporation to follow and bind by the Town Development Plans prepared under the Adhiniyam, 1973.
40. The Hon'ble Supreme Court in the case of Friends Colony Development Committee V/s. State of Orissa reported as (2004 AIR SCW 5923) and also in case of Esha Ekta Apartments Ltd & Ors.V/s. Municipal Corporation of Mumbai & Anr. reported as 2012 (4) SCC 689 has held that Municipal Corporation is empowered to any illegal construction or the construction without proper building permission.
41. The Development Plan - 2021 in any manner violates the Article 14 - Right to Equality of the petitioners or Article 21
- Protection of life and personal liberty or even Article 300A - Persons not to be deprived of property save by authority of law.
42. There is automatic vesting of any land or building falling within set back area as provides under Section 305 of the Act of 1956 and settled by Hon'ble Supreme Court in case of Ravindra Ramchandra Waghmare (supra). Therefore, HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...32... WP.No.23497/2017 & Conct. writ petitions there is no substance in the contention of the petitioners about non observance of the requirement of Land Acquisition Act, 1894.
43. In the case of Rajendra Shankar Shukla V/s. State of Chhatisgarh reported as (2015) 10 SCC 400, the Raipur Development Planned Authority, viz., Kamal Vihar Township Development Scheme (KVTDS) and subsequently included five villages in the said scheme. The lands belonging to the private owners were to be taken over by consent or acquisition. The allegation was that the RDA had assumed the role of Town Planning Authority by proposing and framing KVTDS with land use which was different from the one prescribed in the Raipur Master Plan (Revised) 2021. However, in the present case, the respondent No.4 - Indore Municipal Corporation has not done any such thing. The Hon'ble Supreme Court in para 22 of the judgment observed that the Master Plan was in clear violation of Section 14 and 17 of the Adhiniyam, 1973, on the ground that Raipur Development Authority admittedly prepared the Master Plan (Revised) 2021, which was in clear contravention of Section 14 of the 1973 Adhiniyam. In the case in hand, the Indore Municipal Corporation has not prepared the Master HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...33... WP.No.23497/2017 & Conct. writ petitions Plan. The Master Plan has been prepared by the Director as provided under Section 14 of the 1973 Adhiniyam. The Hon'ble Supreme Court in para 26 held that a nominated body like RDA cannot assume the role of an elected body and cannot usurp the power of the local authority. In para 34 it was held that the Development Plan was altered to suit the requisites of Kamal Vihar Township Development Scheme (KVTDS). In the present case, there is no such scenario nor such condition is existing.
44. For the above mentioned reasons and the law laid down by the Apex Court in the case of Ravindra Ramchandra Waghmare (supra), so also the fact that the SLP (C) No(s). 70/2018, filed by the petitioners therein has already been dismissed, the Writ Petition No(s).23497/2017, 8776/2018, 2246/2018, 1972/2018, 1973/2018, 3031/2018 and 4524/2018, filed by the petitioners are, devoid of any substance and merit and are, liable to be dismissed and are, hereby dismissed. No costs.
45. A copy of this order be retained in other connected matters.
(P.K. JAISWAL, J) (S.K. AWASTHI, J) SS/- Digitally signed by Shailesh Sukhdev Date: 2018.05.10 10:59:31 +05'30'
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...34... WP.No.23497/2017 & Conct. writ petitions HIGH COURT OF MADHYA PRADESH : INDORE BENCH D.B.:Hon'ble Shri P.K. Jaiswal Hon'ble Shri S.K. Awasthi, JJ.
Writ Petition No.23497/2017 KURBAN HUSSAIN & ORS.
Versus INDORE MUNICIPAL CORPORATION & ANR.
******** Writ Petition No.8776/2018 ABHAY SHUKLA & ANR.
Versus INDORE MUNICIPAL CORPORATION & OTHERS.
******** Writ Petition No.2246/2018 JITENDRA JOSHI Versus INDORE MUNICIPAL CORPORATION & OTHERS.
******** Writ Petition No.1972/2018 BHANWAR LAL SINGH & ORS.
Versus INDORE MUNICIPAL CORPORATION & OTHERS.
******** Writ Petition No.1973/2018 Smt. MANORAMA PANDIT & ORS.
Versus INDORE MUNICIPAL CORPORATION & OTHERS.
******** Writ Petition No.3031/2018 SHRIGAUD VIDHYA MANDIR SANSTHA HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...35... WP.No.23497/2017 & Conct. writ petitions Versus STATE OF M.P. ******** Writ Petition No.4524/2018 GOPAL PARETA & ORS.
Versus INDORE MUNICIPAL CORPORATION & OTHERS.
******** ORDER FOR CONSIDERATION (P.K. JAISWAL) JUDGE 4/5/2018 HON'BLE SHRI S.K. AWASTHI, J.
I agree (S.K. AWASTHI) JUDGE /5/2018 Post for _ 7/5/2018 (P.K. JAISWAL) JUDGE 7/5/2018 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE ...36... WP.No.23497/2017 & Conct. writ petitions W.P. Nos.23497/2017, 8776/2018, 2246/2018, 1972/2018, 1973/2018, 3031/2018 & 4524/2018 Indore, Dated :-25.4.2018 Shri A.M. Mathur, Senior Advocate, with Shri A. Dhanodkar, Advocate, for the petitioners (W.P.Nos. 23497/2017, 8776/2018, 1972/2018, 1973/2018 and 4524/2018).
Shri V. Dalal, Advocate for the petitioner (W.P.No.2246/2018).
Shri S. Pathak, Advocaet for the petitioner (W.P.No.3031/2018) Shri Pushpendra Kaurav, Senior counsel with Shri M. Munshi, Advocate and Shri Rishi Tiwari, Advocate for the respondent No.1 - Indore Municipal Corporation.
Shri Rohit Mangal, Govt. Advocate for respondent /State. Heard.
Reserved for orders.
(P.K. JAISWAL) (S.K. AWASTHI)
JUDGE JUDGE
7.5.2018
Order passed separately signed and dated.
(P.K. JAISWAL) (S.K. AWASTHI)
JUDGE JUDGE
SS/-