Madhya Pradesh High Court
Kausar Hasan vs The State Of Madhya Pradesh on 3 February, 2023
Author: Sheel Nagu
Bench: Sheel Nagu, Virender Singh
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE VIRENDER SINGH
WP. No.9204 of 2014
BETWEEN:-
KAUSAR HASAN S/O JAFAR HASAN, AGED
ABOUT 38 YEARS, R/O ASHOK COLONY,
NOOR MAHAL, TEHSIL HUZUR, BHOPAL
(MADHYA PRADESH)
.....PETITIONER
(BY MRS. SHOBHA MENON- SENIOR ADVOCATE WITH MS.
JAYALAKSHMI IYER -ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE, VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. COMMISSIONER, MUNICIPAL
CORPORATION BHOPAL (MADHYA
PRADESH)
3. COLLECTOR, BHOPAL (MADHYA
PRADESH)
.....RESPONDENTS
(STATE BY SHRI NAVEEN DUBEY - GOVERNMENT ADVOCATE)
(MUNICIPAL CORPORATION BY SHRI ARPAN J. PAWAR AND
SHRI AKSHAT ARJARIA - ADVOCATES)
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Reserved on : 13.09.2022
Pronounced on : 03.02.2023
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This petition having been heard and reserved for orders, coming
on for pronouncement this day, Hon'ble Shri Justice Sheel Nagu
pronounced the following:
ORDER
This petition filed under Article 226 of the Constitution seeks a writ of certiorari for quashment of order dated 26.05.2014 (Annexure P/1) by which Municipal Corporation, Bhopal, in compliance of final order dated 11.04.2014 passed in a PIL WP. No.6145/2002 and WP. No.15960/2012, directs the petitioner to remove the unlawful construction made without mutation and permission over part of Survey No.160, which is earmarked for Siddique Hasan Tank within the capital town of Bhopal. Further, writ of mandamus is sought for directing Municipal Corporation to compound the unlawful construction, which is built over the land alleged to be lawfully owned by petitioner.
2. Learned counsel for rival parties are heard on the question of admission so also final disposal.
3. Pertinently, this Court while entertaining this petition and the connected matters on 02.07.2014 had passed an interim order to the following extent:-
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"Till further orders, the Corporation shall continue with the exercise already commenced for complying with the directions contained in order dated 11th April, 2014 and 8th May, 2014. The final orders may be passed but the execution work may be kept in abeyance till further orders of this Court."
4. Before proceeding ahead, it is apt to point out that impugned order dated 26.05.2014 is founded upon final order dated 11.04.2014 passed in PIL WP. No.6145/2002. In the said PIL, the Coordinate Bench was adjudicating the public cause of large scale encroachments made over the land reserved for Siddique Hasan Tank within the town of Bhopal and the need to restore the same to its original state and beauty and to prevent further environmental degradation. While adjudicating aforesaid PIL, the Coordinate Bench of this Court on the basis of material brought on record rendered various findings and observations, relevant extract of which are reproduced below:-
"12. To address that issue on hand, in our considered opinion, the Corporation should be primarily responsible. Inasmuch as, it is the bounden duty of the Corporation to ensure that no unauthorized construction is put up in any part of the City. The provisions of the Corporation Act predicate that no new construction can be started without prior permission of the Corporation. Thus, every owner/occupant of the structure standing on the entire site in question - be it falling within 8 Acres or other 4 Acres as the case may be - must possess valid building permission for construction of structure occupied by him. If he is not in a position to produce valid building permission in respect of structure owned/occupied by him, it would necessarily follow that the concerned structure is unauthorized. In that event, it is the bounden duty of the Corporation to remove that structure with utmost dispatch. It is possible that the owners/occupants of the structure may
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produce permission granted by the Corporation, but the structure standing on the site may not correspond to the area permitted by the Corporation. Even in that case, the excess area constructed by such owner/occupant will have to be treated as unauthorized and proceeded with in accordance with law by the Corporation forthwith.
14. We may note that the fact that a decree has been passed by the Civil Court indicating that the occupant is the owner of the land does not permit the owner to put up any construction thereon without a valid permission of the Corporation. Ownership of land should not be mixed up with the issue of structure being unauthorized, either by the Corporation or the Execution Agency. During the survey, the Corporation should insist for production of a valid building permission from the occupants of the structure and if he fails to do so, must proceed against the structure after following due process. This shall be done phase-wise.
15. During the course of hearing, it was pointed out to us by the counsel for the Structure-owners/occupants appearing in the companion interim applications that in some of the cases the occupants had submitted application for permission for construction, but since no response was received within the statutory period, the concerned occupants proceeded on the assumption that there was deemed permission. Whether such a plea is available and can be sustained, that matter will have to be examined by the Commissioner on case to case basis as per Law.
16. If the Corporation decides to demolish the structure, it must give at least ten days demolition notice to the concerned occupant/owner. It will be then open to them to apply for regularization, if the Law permits. As a matter of fact, the owners/occupants can invoke that remedy in anticipation forthwith, if so advised. It is for the Corporation to consider whether such regularization may be permissible in law and including the extent to which the structure can be regularized. That is a matter to be answered by the Corporation on case to
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case basis. That will have to be done expeditiously and not later than two weeks from the receipt of such application. In case, the application for regularization is rejected, the Corporation will be free to demolish the unauthorized structure after giving ten days from the date of service of the demolition order on the owner/occupant. Further, the demolition notice must be given within ten days from rejection of the regularization application.
18. As aforesaid, the ownership of land should not be mixed up with the issue of removal of unauthorized structures. Both these issues are mutually exclusive.
20. For the time being, we would assume that one months time per acre may be more than sufficient to complete the survey structure wise and for removal of unauthorized structures on the site after following due process. We, accordingly, give aggregate eight months time to the Corporation with a hope that the Corporation would complete the exercise phase-wise, by dividing it into segments and after doing survey, must proceed against the concerned structures contemporaneously if found to be unauthorized, by following due process.
21. No Civil Court in Bhopal will entertain any challenge to such action as the order of removal of unauthorized structures in Tank area has been passed in the Public Interest Litigation and the entire issue in that regard is pending before us. If any person has any grievance about the justness of the action of the Corporation, can directly approach this Court in that connection.
23. We further make it clear that if the Corporation finds any difficulty or apprehends resistance from the locals during the execution of demolition order, must give atleast two days advance notice to the Superintendent of Police, who, in turn, shall be personally responsible to provide adequate logistical support to the officials of the Corporation at the time and place as desired by them to facilitate the demolition of concerned
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unauthorized structures. The Superintendent of Police, Bhopal, shall be personally responsible for that.
24. Non-compliance of this order by any official of the State or the Revenue Authorities including the Corporation will be viewed seriously and may be proceeded against for committing aggravated contempt.
25. We are inclined to say this because this Court has repeatedly directed the Corporation as back as from February, 2005 to remove all the unauthorized structures and clear the site from encroachments but no tangible effort has been made by the Corporation so far.
27. As regards Writ Petition No.15960/2012, although the issue raised in this petition is somewhat different, but the matter has been tagged on account of the order passed by the Revenue Authority declining to mutate the land in favour of the petitioner on the ground that the proceeding pertaining to Siddique Hasan Tank are pending in this Court being Writ Petition No.6145/2002. We dispose of this petition with a direction to the Revenue Authority to examine the claim of the petitioner for mutation on its own merits in accordance with law and being uninfluenced by the pendency of Public Interest Litigation. Needless to observe that the application filed by the petitioner before the Revenue Authority will have to be examined in the context of revenue laws as it is only for mutation in respect of the land purportedly owned and possessed by the petitioner. That inquiry has to be made by the Revenue Authority. Accordingly, this petition (W.P. No.15960/2012) is disposed of in terms of this order."
4.1 From the aforesaid final order in PIL, the Coordinate Bench of this Court categorically held and directed as follows:-
(i) The issue of ownership/title of the land in question is distinct from the issue of construction without permission of the Competent Authority.
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(ii) The encroachments made over the area reserved for Siddique Hasan Tank cannot be permitted in the absence of valid building permission for construction.
(iii) In the absence of valid building permission, the Corporation must proceed to remove the unlawful construction after following due process of law.
(iv) In some cases applications for compounding the unlawful construction were moved without any response from the Corporation. Whether plea of deemed permission in pending applications could be taken or not, is to be examined by Commissioner from case to case basis.
(v) The Corporation as and when decides to demolish the structure and finds it difficult to execute this process, the assistance of police can very well be obtained.
(vi) Non compliance of order passed in PIL shall be viewed seriously and the Court may proceed against erring personnel in aggravated contempt.
5. Learned counsel for the petitioner submits that by virtue of Annexure P/2, which is a sale deed, Late grandfather of the petitioner had purchased the property in question vide registered sale deed dated 14.03.1975. It is also submitted that after the death of Late grandfather of petitioner, property is being held on the basis of hiba. It is further urged that by judgment and decree passed on 05.04.1984 in Civil Suit No.30- A/1978 vide Annexure P/3, a finding has been rendered that the property in
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question is not owned by the Corporation and a decree has been passed that the suit property belongs to and is possessed by three plaintiffs in the said suit. It is also submitted that the construction in question is standing since last 40 years and an application for regularizing/compounding the alleged unlawful construction was made, but the same continues to be pending with the Corporation and, therefore, a plea of deemed permission to construct/deemed compounding is raised. At this stage, petitioner submitted that the application seeking building permission was made but receipt of the same is not traceable.
6. The Corporation in its reply has inter alia submitted thus:-
(i) No building permission issued in favour of the petitioner was found in the record of Corporation.
(ii) Even the application seeking building permission/compounding was not found in the record of Corporation.
(iii) Despite petitioner having been given opportunity of producing relevant documents (application or receipt of application) on 15.05.2014, he could not produce the same.
(iv) The sale deed dated 14.03.1975 vide Annexure P/2 has been found by the Corporation to be not registered and is thus of no avail to the petitioner.
6.1 In the aforesaid factual scenario, the Corporation holding that there is no valid building permission for construction found the building in question to be unlawful and, therefore, directed for it's removal by the impugned order.
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7. The petitioner in the rejoinder has submitted that property tax and other related taxes are being paid by the petitioner to the Corporation and the construction in question also has a water connection. It is further submitted that the construction in question is standing since last 40 years and since the application for building permission filed by the petitioner continues to be pending, the permission ought to be deemed to be granted.
8. The petitioner herein is primarily banking upon the sale deed and the judgment and decree of Civil Court dated 05.04.1984 (Annexure P/3). This Court need not enter into the veracity and authenticity of judgment and decree and sale deed since the Coordinate Bench while deciding PIL WP. No.6145/2002 has held in categorical terms that mere ownership and peaceful possession of land in question shall not automatically legitimise the construction in question unless a valid permission for building construction is produced.
8.1 The petitioner herein has not been able to either produce a valid building construction permission or the receipt of any such application submitted to the Corporation. An averment has been made by the petitioner that an application for building construction was made with no details as to when or the authority to whom the application was submitted. As such, this Court cannot help the petitioner and the inference drawn by respondent- Corporation that construction in question is unlawful, cannot be found fault with.
8.2 As regards the claim for regularization/compounding of unlawful construction is concerned, it is apt to refer the relevant provisions i.e.
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Section 308-A and 308-B of M.P. Municipal Corporation Act, 1956 (for brevity "Act of 1956"), which for ready reference and convenience is reproduced below in toto:-
[308A. Compounding of offences of construction of buildings without permission. - [Notwithstanding anything contained in this Act or any other Act, for the time being in force or any rules or bye-laws made thereunder, the Commissioner may compound the offence of constructing buildings without permission or contrary to the permission granted, if -
(a) such construction docs not affect the regular building line;
(b) the unauthorised construction made in the marginal open spaces or in excess of the prescribed floor area ratio does not exceed ten percent of the prescribed floor area ratio;
(c) such construction does not come within the area notified by the State Government as a hill station or a place of tourist importance or sensitive from the point of ecology;
(d) such construction does not come within the area specified for parking of vehicles;
(e) such construction does not come within the boundary of roads or within the area affecting alignment of public roads;
(f) such construction does not come within the area specified for Tanks (Talab).
(g) such construction does not come within thirty metres or such further distance from the river bank as may be specified in the master plan of the concerned town;
(h) such construction does not come within the area of any nallah and water stream :]
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[Provided that in compounding the cases in respect of the area of unauthorized construction, including the unauthorized constructions in the illegal colonies taken over under management by the competent authority for regularization, the fee shall be charged at such rate and on such conditions as may be prescribed by the State Government] [xxx] Provided also that nothing contained in this Section shall apply to any person who does not have any right over the building or the land on which the construction has been made.] [308-B Relaxation in compounding the unauthorised construction. - (1) Notwithstanding anything contained in Section 308-A or any other provisions of this Act or any other law for the time being in force, the Commissioner may, on the application made in this behalf by order, compound the cases involving deviations from the approved plan or map, or construction made without permission by collecting compounding fee at such rate as may be determined by the State Government.
(2) The application under sub-section (1) shall be made within 90 days from the date of the commencement of [the Madhya Pradesh Nagar Palik Vidhi (Sanshodan) Adhiniyam, 2005] and the Commissioner shall, after making such enquiry as he deems lit decide all applications received under sub-section (1) within six months from the date of receipt. If the Commissioner fails to decide the applications received under sub-section (1) within the aforesaid period he will be deemed to be guilty of dereliction of duty and liable for disciplinary action. (3) Upon the issue of the order under sub-section (1), permission shall be deemed to have been granted under this Act and the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 and the rules and bye-laws made thereunder. (4) Nothing contained in sub-section (1) shall apply to any application by any person who does not have any right over the building or the land on which the construction has been made
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or to any application in respect of any building erected or constructed in any of the following areas :-
(i) area notified by the State Government as a hill station or a place of Tourist importance or as sensitive/fragile from the point of ecology;
(ii) area specified for parking of vehicles;
(iii) area coming within the Road or area affecting alignment of Public Roads;
(iv) area specified for tanks (Talab);
[xxx]
(v) area of construction affecting regular building line.
(vi) area of construction coming within thirty metres or such further distance form the river bank as may be specified in the master plan of the concerned town;
(vii) area of any nallah and water stream.
8.3 Bare perusal of aforesaid provisions reveals that Section 308-A & 308-B though begin with non obstante clause, meaning thereby that it has overriding effect over other provisions of the Act of 1956 or any other Act or Rules or Bye-laws framed under the Act of 1956, but one of the exceptions laid down in respect of which the power of compounding cannot be exercised is reiterated below for clarity:-
[308A. Compounding of offences of construction of buildings without permission. - [Notwithstanding anything contained in this Act or any other Act, for the time being in force or any rules or bye-laws made thereunder, the Commissioner may compound the offence of constructing buildings without permission or contrary to the permission granted, if -
(a) **** **** ****
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(b)**** **** ****
(c) **** **** ****
(d) **** **** ****
(e) **** **** ****
(f) such construction does not come within the area specified for Tanks (Talab).
(g) **** **** **** (h) **** **** ****
[308-B Relaxation in compounding the unauthorised construction. -
(1) ***** ***** ***** (2) ***** ***** ***** (3) ***** ***** *****
(4) Nothing contained in sub-section (1) shall apply to any application by any person who does not have any right over the building or the land on which the construction has been made or to any application in respect of any building erected or constructed in any of the following areas :-
(i) ***** ***** *****
(ii) ***** ***** *****
(iii) ***** ***** *****
(iv) area specified for tanks (Talab);
[xxx]
(v) ***** ***** *****
(vi) ***** ***** *****
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(vii) ***** ***** *****
8.4 It is pertinent to point out that Section 308-B(4)(iv) had a proviso,
which was omitted w.e.f. 31.08.2005 by M.P. Act 21 of 2005. Before being omitted the proviso read as follows:-
"Provided that where the construction has been made in the area specified for tanks (talab) is more than ten years old, the case may be compounded."
9. Aforesaid reveals that when Section 308-B was incorporated in the Act of 1956 w.e.f. 25.08.2003 by M.P. Act 29 of 2003, the aforesaid proviso saved those constructions which were more than ten years old despite having been made in areas specified for Tanks (Talab).
9.1 However, Legislature in its rightful wisdom and to save the environment and ecology from further degradation deleted this proviso to Section 308-B(4)(iv) w.e.f. 31.08.2005.
9.2 This amendment made in the Municipal Corporation Act was obviously to save the tanks and water bodies from further depletion. It is common knowledge that rapidly shrinking water bodies especially in urban areas are causing rapid fall in ground water levels thereby adversely impacting the ecological balance of the capital city of Bhopal.
9.3. The omission of aforesaid proviso from both the sections i.e. Section 308-A & 308-B relating to compounding reveals the realization by the Legislature that if the proviso is allowed to continue as part of the Statute Book, then the same can be misused by unscrupulous citizens for legitimizing their encroachments and also by the political functionaries to
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serve their own vested interests at the cost of environment and ecology. Good sense prevailed upon the Legislature and, therefore, within a span of two years, said proviso was deleted.
10 In view of aforesaid, what comes out loud and clear that the Legislature does not intend to legalize/regularize/compound any unlawful structure built on an area specified for lake/pond/talab.
10.1 In the above conspectus, the applications for regularization/compounding, even if made by the petitioner or any other person, the unlawful structure built on the Talab in question, cannot be regularized with the aid of compounding under the Act of 1956.
10.2 Thus, assuming any application for regularization/compounding was preferred by the petitioner at any point of time, is of no avail to the petitioner.
11. Before parting it, it would be appropriate to deal with arguments that by taking the view that regularization/compounding of unlawful structure on an area specified for lake/pond/talab is impermissible in law, this order may come in conflict with the observations and directions made by Coordinate Bench of this Court in PIL WP.No.6145/2002.
11.1. In this regard, it is seen that in the PIL the Court had made certain observations that in case any application for regularization/compounding is pending or is filed, then the same shall be dealt with by the Commissioner, Municipal Corporation in accordance with law. Therefore, the order passed
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in the PIL earlier had merely directed the Commissioner to deal in accordance with law and not against it.
11.2 Since this Court has already held supra that there is no provision in law under the Act of 1956 to regularize/compound an unlawful structure on a land specified for lake/pond/talab, then an application made in this regard by the petitioner is non est in the eyes of law.
12. In view of aforesaid discussion, this Court has no manner of doubt that not only the State and its instrumentalities including Municipal Corporation, Bhopal, but also the petitioner shall rise to the occasion by keeping the larger public interests of the environment and ecology above their personal and petty interests. It is expected of the petitioner to himself remove the unlawful structure over the land specified for lake/pond/talab and prove himself to be worthy citizen of capital city of Bhopal.
12.1 In case the unlawful structure of petitioner built over the land specified for lake/pond/talab in question is not removed within a period of 30 days from today, then the same shall be removed by the Municipal Corporation with the aid of police, if necessary, after following due process of law.
13. Accordingly, with the aforesaid observations, present petition is dismissed sans cost.
(SHEEL NAGU) (VIRENDER SINGH)
JUDGE JUDGE
mohsin
MOHAMMED MOHSIN QURESHI
2023.02.03 18:15:40 +05'30'