Madhya Pradesh High Court
Jayesh Vyas vs Indore Municipal Corporation on 3 January, 2018
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HIGH COURT OF MADHYA PRADESH
W.P. No. 5735/2017
Indore, Dated: 3/1/2018
Shri Vishal Baheti learned counsel for petitioner.
Shri Rishi Tiwari learned counsel for the respondents.
Heard finally with consent.
By this writ petition the petitioner has challenged the order dated 16/08/2017 whereby the petitioner's application for compounding the alleged construction under the provisions of Madhya Pradesh Municipal Corporation Act has been rejected.
The case of the petitioner is that he has purchased the land in question in the year 1995 and has constructed a boundary wall and a guard room thereon, but he was issued the notice dated 13/04/2017 by respondent No.2 for removal of the construction and asking him to produce the necessary documents. The petitioner had filed the reply but without considering the same another notice dated 18/04/2017 was issued for demolition. Aggrieved with which, petitioner had filed W.P. No.2659/2017 which was disposed of by order dated 11/07/2017 with liberty to the petitioner to file an application for compounding and by the impugned order the said application for compounding has been rejected.
Learned counsel appearing for the petitioner submits that the petitioner has constructed only a boundary wall on the land in question and that the petitioner's application for compounding has been rejected without appreciating that the petitioner has raised the construction beyond the prohibited area from the reservoir. He further submits that under the provisions of the Madhya Pradesh Municipal (Compounding of Offence of ~2~ Construction of Buildings, Fees and Conditions) Rules, 2016, even the construction raised without permission can be compounded and that the impugned order is not a speaking order.
As against this, learned counsel for the respondents submits that since the petitioner's land is located in an area reserved for regional park and bird sanctuary, therefore, no construction can be allowed in that area. In support of his submission, he has referred to the various provisions of the Master Plan and has placed reliance upon Section 308A (c) of the Act.
Having heard the learned counsel for the parties and on perusal of the record, it is noticed that while deciding the petitioner's earlier writ petition No. 2659/17 vide order dated 11/7/2017, the coordinate Bench of this Court had found no error in the impugned action by holding as under:-
"In the considered opinion of this Court, as there was no building permission, the respondents were justified in passing the impugned order. No case for interference so far as the impugned order is concerned is made out. At this stage Shri Assudani, learned counsel has prayed before this court for permitting the petitioner to file an application for compounding. Resultantly, the petitioner shall be free to submit an application for compounding and if law permits, the Corporation shall be free to pass appropriate order in respect of the compounding keeping in view the Municipal Corporation Act."
The aforesaid order reveals that at the stage of dismissal of the writ petition a prayer was made seeking permission to file an application for compounding, therefore, the time bound direction in this regard was issued.
The impugned order reveals that petitioner's application for ~3~ compounding has been rejected on the ground that the area where the land of the petitioner is located is reserve for regional park and no construction is permitted in that area and further that the provision of Section 308 of the Act for compounding cannot be attracted for such a land.
The respondent has produced a copy of the map Annx. R/8 alongwith the affidavit dated 18/12/2017 which reflects that the land in survey No.525/8 falls within the area reserved for regional park. Though counsel for the petitioner has raised a plea that survey number of his land is 525/21 but he has not disputed the fact that the said survey number is part of the larger survey No.528/8 of village Sirpur, Tehsil Indore which was purchased by the registered sale deed dated 29/11/1995 Annx. P/1.
Counsel for the respondents has drawn the attention of this Court to the various provisions of Indore Master Plan 2021.
Clause 3.16.1 of the Master plan reveals that the area near Sirpur reservoir is earmarked for the regional park and clause 3.16.3 reveals that a bird sanctuary is also proposed in that area.
In terms of table 6.01, the regional park is covered under the recreational activity and in terms of table 6.22 under category "P" it can only be used for open / playground or police station / chowki etc. which seems to be of public use. Even the other activities in category "C" can be allowed on merit by the competent authority and in terms of Section 308 A(c) of the Act, construction on a notified area sensitive from the point of ecology cannot be compounded. Nothing has been shown by the petitioner to rebut the contention of the respondents that the area is sensitive from the point of ecology because it is earmarked for the regional park and the bird sanctuary.
~4~ That apart, it is also noticed that the judicial review is of the decision making process and the respondent No.1 has not committed any error in this regard while passing the impugned order. Due and cogent reasons which are duly supported by the provisions of the Master Plan have been assigned while rejecting the application and it has also been noted that the area falls within the catchment area of the Sirpur reservoir which would affect the reservoir.
So far as the issue raised by counsel for the petitioner in respect of the distance from the reservoir based on clause 6.15.3 of the Master Plan is concerned, the application for compounding has not been rejected on that ground, therefore, the said issue at this stage is not relevant.
Learned counsel for the respondents has also drawn the attention of this Court to the order dated 14/11/2017 passed in WP No.5399/2017 whereby the similar order rejecting the application for compounding of construction situated in an area reserve for the regional park was upheld by this Court by holding as under:-
"The impugned order reveals that the area in question has been reserved for Regional Park and as per the Development Plan no building construction of any kind either temporary or permanent is permissible in the area.
The record further reveals that the petitioner has raised the construction in the catchment area of Sirpur Lake where no such construction is permissible as per the Indore Development Plan 2021. As per 3.16.1 of the Plan, Sirpur area near Sirpur lake is proposed for Regional Park and as per 3.16.3 a bird sanctuary is also proposed at Sirpur. The clause 6.20.1 of the Development Plan reveals that only few activities such as play ground, police station, bus stop etc. are permissible in the area in ~5~ question, but the construction of such nature which the record further reveals that the petitioner has not come to this court with the clean hands. In para 5.3 of the earlier writ petition the petitioner had raised the plea that he had raised construction ad-measuring 300 sq.ft., then in the rejoinder he had changed his plea and pleaded that he had raised construction on an area of 1103.25 sq.ft. In this writ petition also the petitioner has made an averment that he had constructed godown, choukidar room, one temple and electronic panel room whereas the uncontroverted photograph Annexure R/3 filed along with the reply reveals that the petitioner has raised huge construction on the land in question. The sale deed which the petitioner has filed reveals that the petitioner has purchased the agricultural land. Counsel for petitioner has failed to point out as to how the petitioner could raise permanent construction of such a nature reflected in Annexure R/3 without obtaining any building permission that too in a prohibited area.
Having regard to the aforesaid, I am of the opinion that no error has been committed by the respondents in rejecting the petitioner's application for compounding by the impugned order. Hence, no case for interference is made out."
Having regard to the aforesaid, I am of the opinion that no case for interference in the present writ petition is made out. The writ petition is accordingly dismissed.
C.c. as per rules.
(Prakash Shrivastava) Judge BDJ Bhunesh Digitally signed by Bhuneshwar Datt DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=452001, st=Madhya Pradesh, war Datt 2.5.4.20=3fb5bcda9fd75d95d6c7cdcbd092e e5a74a94a5534aed3a66d9385cfcfc201e0, cn=Bhuneshwar Datt Date: 2018.01.06 12:33:11 -08'00'