Madhya Pradesh High Court
Rajgiri Nagar Rahwasi Sangh Thr. Shri ... vs General Administration Department on 31 October, 2018
Author: P.K. Jaiswal
Bench: Vivek Rusia, P.K. Jaiswal
1
WP (PIL) No.11003/2018
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
D.B.: Hon'ble Shri P.K. Jaiswal
Hon'ble Shri Vivek Rusia, JJ.
Writ Petition No.11003/2018
[Rajgrahi Nagar Rahawasi Sangh Residential Society
through its Secretary
Ravindra Singh Upasak s/o Late Shri Ayodhya Singh Upasak
Versus
The State of Madhya Pradesh & others]
*****
Shri Veer Kumar Jain, learned Senior Counsel along with Shri Sumit
Samvatsar & Shri Rishi Shrivastava, learned counsel for the petitioner.
Shri Vivek Patwa, learned Government Advocate for respondents
No.1, 3, 4, 6 and 7 / State of Madhya Pradesh.
Shri Manoj Munshi, learned counsel for respondent No.2 / Indore
Municipal Corporation.
Shri Vijay Assudani, learned counsel for respondent No.5 / Jagrati
Griha Nirmaan Sahakari Sanstha Maryadit, Indore.
Shri Vinay Saraf, learned Senior Counsel along with Shri Rizwan
Khan, learned counsel for proposed twenty two interveners.
*****
ORDER
(Passed on this 31st day of October, 2018) Per P.K. Jaiswal, J.
The petitioner - Rajgrahi Nagar Rahawasi Sangh Residential Society is registered under the Madhya Pradesh Society Registration Act, 1973. The registration number of the Residential Society is 03/27/03/09730/07 (Annexure P/1). The said Society was desirous to develop a residential colony on the land in question in the name of "Rajgrahi Colony" and is established for the benefit of all the plot owners of Jagrati Griha Nirmaan Sahakari Sanstha Maryadit (respondent No.5).
2. Respondent No.5 - Cooperative Society owned a land ad-measuring 25.843 hectares situated in Village 2 WP (PIL) No.11003/2018 Pipliyahana, Tahsil and District Indore (MP). For the purpose of development of a colony, respondent No.5 has obtained permission for development of the aforesaid land under the provisions of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973. The aforesaid land was agriculture land; hence, respondent No.5 obtained permission of diversion under Section 172 of the Madhya Pradesh Land Revenue Code, 1959 on 29.05.1991 (Annexure P/3). Thereafter, on 09.07.1991, the Collector, Indore granted permission to develop colony on the said land. A lay out plan of the Colony was sanctioned on 02.01.1992 (Annexure P/2) by the Collector, Indore (Respondent No.3). On 08.04.1992, supervision charges amounting to Rs.2,13,183/- was raised against respondent No.5; and respondent No.5 deposited the same on 30.04.1992.
3. After obtaining statutory permissions / licenses required for development of a Housing Colony, development work was started by respondent No.5. The petitioner - Residential Society, being members of respondent No.5 - Cooperative Society, were also allotted plots for construction of their house in the said colony and sale deeds (Annexure P/4) were executed in favour of the petitioner, its members and number of other members of the Society. Building permission for construction of house was sanctioned by Indore Municipal Corporation on 23.11.1995 (Annexure P/5). The members of the petitioner - Residential Society 3 WP (PIL) No.11003/2018 started construction of their house in the colony somewhere in 2000.
4. On 27.07.2000, complaint was lodged against respondent No.5 stating therein that the colony is not fully developed and a number of development works are incomplete. The Collector, Indore (respondent No.3) constituted a Committee to go through the complaint and submit its report. The said Committee, after making necessary enquiry, submitted report on 18.03.2006 (Annexure P/6). The Committee found certain deficiencies in the development of the colony. On the basis of the said Enquiry Report, respondent No.5 - Cooperative Society called a general meeting of its members by notice dated 31.05.2006 (Annexure P/8); and passed a resolution on 25.02.2007 (Annexure P/9) whereby it was agreed to make over the deficiencies of development of the colony. Accordingly, development of the colony was completed; and all the deficiencies pointed out in the Enquiry Report were rectified.
5. As per reply of respondent No.5, after report dated 26.04.2008, respondent No.5 - Cooperative Society has taken remedial measures and adhered to instructions of the Registrar, Cooperative Society and called Special General Meeting of the Society under Section 50 of the Madhya Pradesh Cooperative Societies Act, 1960, wherein following resolutions were to be considered: -
4 WP (PIL) No.11003/2018a) Society owners how much land out of which how much land is developed and how much land is undeveloped;
b) there are how many members of the Society and what amount they have deposited for plot and development expenses;
c) the society should apprise the members about the layout plan sanctioned by the Town & Country Planning Department;
d) society should apprise the members about the development work and development expenses;
e) how many developed plots society had and out of which how many plots have been allotted;
f) information about remaining plots of the society as well as details of number of members who have not been allotted plot;
g) to apprise the members of financial position of society for the year, 2001-02, 2002-03, 2003-04 and 2004-05;
h) to apprise the members about land sold by society to Savita Grih Nirman Sahakari Sanstha Maryadit; and,
i) to nominate members in the development committee of the society.
6. As per resolution dated 25.02.2007 (Annexure P/9), on account of judgment and decree dated 13.06.2005 (Annexure P/15) passed by the Competent Court, the society has to execute sale-deed of certain land in favour of Savita Grih Nirman Sahakari Society. Consequently, an area of land available with respondent No.5 - Cooperative Society has been reduced. Consequently, there was a need for reduction in plot area so as to allot plot to majority of members, as per their seniority and the aforesaid explanation was accepted in majority. It was also brought to the notice of the members that after reduction of size of plot, all members in whose favour sale-deed has been executed will get the 5 WP (PIL) No.11003/2018 plot. From the aforesaid, it is clear that all deficiencies, pointed out in the Enquiry Report dated 26.04.2008, were rectified.
7. In the meanwhile, Commissioner, Indore Municipal Corporation, (respondent No.2) issued notice for demolition of the development work done by respondent No.5, and therefore, respondent No.5 - Cooperative Society challenged the said action by filing Civil Original Suit No.05-A/2008. The learned trial Court vide order dated 23.01.2008 (Annexure P/10) granted temporary injunction and directed the Indore Municipal Corporation not to interfere into the development work.
8. On 18.05.2009 Indore Municipal Corpration held work shop in respect of various colonies and notice dated 15.05.2009 (Annexure P/11) of the aforesaid work shop was issued to respondent No.5. The work shop was conducted in presence of respondent No.2, Additional Collector, Indore, Nazul Officer, Indore, respondent No.3 as well as respondents No.6 and 7. The issue of petitioner's society was also discussed in the said work shop and it was decided to hold Special General Meeting of the Society on 07.06.2009 (Annexure P/12). As per minutes of the meeting (Annexure P/12), it was agreed that officials of respondent No.2 would also attend the said meeting for resolving the problem with cooperation of respondent No.2's officials. On 14.06.2009 (Annexure P/13), Special General Meeting was called and it was 6 WP (PIL) No.11003/2018 resolved that a fresh lay out plan be submitted for sanction and size of the plot already allotted to its members be marginally reduced and accordingly fresh development plan / lay out plan was to be submitted to the Authorities.
9. Respondent No.5 prepared fresh development plan and submitted the same before the Competent Authorities and gave details of the aforesaid fresh development plan to its members in Special General Meeting held on 27.12.2009 (Annexure P/14).
10. As per fresh development plan, there would be 73 plots of 1000 sq. ft. each (20 ft. x 50 ft.), 820 plots of 1250 sq. ft. (25 ft. x 50 ft.), 30 plots of 1500 sq. ft. (30 ft. x 50 ft.), 30 plots of 1500 (25 ft. x 60 ft.). It was also decided that after sanction of the development and lay out plan, civil suit filed by the society will be withdrawn.
11. In the meanwhile, in pursuance to the judgment and decree dated 13.06.2005 passed in favour of Savita Grih Nirman Sahakari Sanstha Maryadit, Indore, respondent No.5 executed registered sale-deed in favour of the aforesaid society vide Annexure R-5/1.
12. Thereafter, on 21.01.2013 respondent No.5 submitted an application under Section 29 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973.
13. Members of the petitioner and respondent No.5 filed Writ Petition No.10410/2013 for issuance of necessary directions against the respondents to pass 7 WP (PIL) No.11003/2018 revised sanctioned plan. The said writ petition was disposed of on 26.11.2013 (Annexure R-5/3) with direction to the Joint Director, Town & Country Planning Department, Indore to do the needful at the earliest so that plot can be given to the members of the society, as per law.
14. Before sanctioning the revised development plan, the Joint Director, Town & Country Planning Department, Indore, directed the Cooperative Department that before passing the development plan, it would be necessary that members of the society in General Meeting pass a resolution on six issues including the following issues: -
"(i) Whether the members are entitled to claim back their amount after reduction in area of plot?
(ii) If any member is dissatisfied about new development plan / layout plan then the policy in this regard should be decided in the meetings?
(iii) How 1148 plots will be allotted to members as per amended layout plan?
(iv) Whether any case is pending in the Cooperative Court as regard these plots?
15. The Cooperative Department vide order dated 02.08.2014 (Annexure P/19) responding to the aforesaid letter of Joint Director, Town & Country Planning Department and informing the Authority that in Special General Meeting of the Society, they have passed various resolutions, and therefore, now there is no impediment in sanction of layout plan. The Joint Director, Town & Country Planning sanctioned the revised lay out plan of 8 WP (PIL) No.11003/2018 the colony vide order dated 28.01.2016 (Annexure R- 5/2)
16. Thereafter, upon a request dated 02.04.2016 of respondent No.2, respondent No.5 had withdrawn the aforesaid civil suit (COS No.5-A/2008) and also deposited an amount of Rs.2,08,020/-, compliance of which was intimated to respondent No.2 vide letter dated 16.05.2016 (Annexure P/22).
17. After completion of all the aforesaid requirement and when there was no impediment, respondent No.5 made a request to respondent No.2 for sanction of building permission of the colony vide request dated 15.03.2016 (Annexure P/21); and thereafter, on 16.03.2017 (Annexure P/27) report was submitted by the Cooperative Department to the effect that all procedures for sanction of layout plan during the years 2009 to 2016 have been legally done, keeping in view interest of members and earlier order passed showing irregularities and initiation of penal action have already been complied with.
18. On 02.04.2016, respondent No.2 - Indore Municipal Corporation issued letter to respondent No.5 to fulfill certain conditions. Respondent No.5 immediately thereafter complied with all the conditions and intimated the same to the Indore Municipal Corporation on 16.05.2016 (Annexure P/22).
19. To the utter surprise of the members of the petitioner and respondent No.5, on 23.04.2018 9 WP (PIL) No.11003/2018 (Annexure P/30), Indore Municipal Corporation, without issuing any notice to respondent No.5 and without affording any opportunity of hearing, passed an order, directing to cancel building permission of the colony; and issued following directions: -
i) Collector, Indore should initiate penal proceedings against colonizers on the basis of report of years 2006 and 2017;
ii) Deputy Commissioner, Cooperative Department should file a suit to get the sale deed in question quashed;
iii) Joint Director, Town & Country Planning Department should take into review the order dated 28.01.2016 granting development permission;
iv) The Additional Collector and Competent Authority, Urban Land (Ceiling) should take steps for recall of order of exemption and the land should be declared as excess land; and,
v) The Superintendent of Police (East) should take steps for registration of FIR and investigation.
20. This order has been passed on an application filed by respondent No.5 for grant of building permission and on such an application, an order, either granting, or refusing building permission could have been passed. This shows that respondent No.2 has exceeded its authority in issuing aforesaid direction which is per se without jurisdiction under the provisions of Madhya Pradesh Cooperative Societies Act, 1960, Madhya Pradesh Urban Land (Ceiling & Regulation) Act, 1976 and / or under the provisions of Code of Criminal Procedure, 1973 / Indian Penal Code, 1860 / Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973.
10 WP (PIL) No.11003/201821. The application for grant of building permission was filed by respondent No.5 on 15.03.2016 and the same was kept pending for nearly two years and thereafter, on 23.04.2018 while rejecting the same, respondent No.2 / Indore Municipal Corporation issued a number of directions. As per provisions of Section 295 (3) of the Madhya Pradesh Municipal Corporation Act, 1956, an application for grant of building permission has to be decided within thirty days, or else, there is a provision for deemed permission.
22. Learned Senior Counsel for the petitioner has submitted that impugned order dated 23.04.2018 (Annexure P/30) is based on enquiry report dated 26.04.2006 which has lost all its force due to subsequent developments and compliance for the development of the colony which were carried out after due sanctions of the authorities. He has also pointed out that respondent No.2 has no jurisdiction to direct other authorities / departments like Cooperative Societies Department, Town & Country Planning Department and Competent Authorities under the Madhya Pradesh Urban Land (Ceiling & Regulation) Act, 1976 and Police Authorities to take action against respondent No.5, which ultimately adversely affects the interest of the members of the petitioner.
23. A detail reply has been filed by respondent No.2 - Indore Municipal Corporation. Learned Government Advocate has adopted the reply of Indore 11 WP (PIL) No.11003/2018 Municipal Corporation (respondent No.2) on behalf of respondents No.1, 3, 4, 6 and 7 / State of Madhya Pradesh, because the impugned order was passed by respondent No.2.
24. The stand of respondent No.2 is that the application of respondent No.5 was rejected on the ground that respondent No.5 is not holding any valid registration to act as a colonizer under Section 292-A of the Madhya Pradesh Municipal Corporation Act, 1956 read with Rule 3 of Madhya Pradesh Nagar Palika (Registration of Colonizers Terms and Conditions) Rules, 1998; development works as per sanctioned development plan has not been completed in entire area of the colony ad measuring 20.102 hectares; permission for diversion has already been expired; sale of part of land to M/s. Deep Ganesh Grih Nirman Sahakari Sanstha is in gross violation of the provisions of the Act and irregularities in allotment and sale of plots. The present writ petition in the interest of plot holders and to compel respondent No.5 to complete the development in all respect cannot be said to be a Public Interest Litigation as it serves more interest of respondent No.5 and less interest of the plot holders. The present petition is a shadow petition filed by the petitioner for the benefit of respondent No.5 in the guise of PIL, has no merit; and prayed for its dismissal.
25. From the facts and events, which have been narrated herein above, respondent No.5 availed all the 12 WP (PIL) No.11003/2018 remedial measures as suggested in report dated 23.11.1995 (Annexure P/5). After report dated 26.04.2008, respondent No.5 - Cooperative Society has taken remedial measures and adhered to instructions of the Registrar, Cooperative Society and called Special General Meeting of the Society; and thereafter, passed a resolution on 25.02.2007 apprising the members about the issues which were subject matter of the Special General Meeting and reason for reduction of size of the plot and execution of sale-deed in favour of Savita Grih Nirman Sahakari Sanstha. On 27.04.2018 (Annexure P/31), Deputy Commissioner,Cooperative Society informed respondent No.2 that all development work in the colony is in accordance with law and after obtaining due sanction from various authorities and there is no illegality in granting such permission.
26. One of the directions issued by respondent No.2 is to recall order of exemption and the land should be declared as excess land under the provisions of Madhya Pradesh Urban Land (Ceiling & Regulation) Act, 1976. This direction has been issued without considering the fact that Madhya Pradesh Urban Land (Ceiling & Regulation) Act, 1976 has been repealed by Urban Land (Ceiling & Regulation) Repeal Act, 1999 with effect from 17.02.2000. The respondent No.1 / State of Madhya Pradesh in similar situation directed the Competent Authority (Collector, Indore) that such type of direction is contrary to law. The direction issued by the 13 WP (PIL) No.11003/2018 Government of Madhya Pradesh on 05/08.04.2008 (Annexure P/32) is relevant and reads, as under: -
"d`i;k vius lanfHkZr i= dk voyksdu djsa] ftlesa tkx`fr x`g fuekZ.k lgdkjh laLFkk e;kZ- bankSj ds i{k esa tkjh dh xbZ NwV dh 'krksZ esa mYya?ku ds QyLo:i izdj.k vkxkeh dk;Zokgh gsrq 'kklu dks iszf"kr fd;k x;k gSA bl laca/k esa izdj.k dk foHkkxh; Lrj ij ijh{k.k fd;k x;k vkSj blds mijkar fof/k foHkkx ls vfHker fy;k x;kA fof/k foHkkx }kjk fn;k x;k vfHker fuEukuqlkj gS %& uxj Hkwfe ¼vf/kdre lhek vkSj fofu;eu½ vf/kfu;e] 1976 ¼la{ksi esa ewy vf/kfu;e½ dh /kkjk 20¼1½ ds varxZr nh xbZ 'kfDr dk iz;ksx djrs gq, ;fn jkT; 'kklu fdlh O;fDr dks lhfyax fyfeV ls vf/kd Hkwfe ds laca/k esa dqN 'krksZ ds v/khu NwV iznku djrk gS vkSj mDr NwV dh 'krksZ dk mYya?ku fd;k tkrk gS ;k 'krZ dk ikyu ugh fd;k tkrk gS rks ,slh NwV dks okfil ysus ds jkT; 'kklu dk vf/kdkj ewy vf/kfu;e dh /kkjk 20¼2½ esa of.kZr gSA fdUrq uxj Hkwfe ¼vf/kdre lhek vkSj fofu;eu½ fujlu vf/kfu;e] 1999 e iz jkT; esa 17@02@2000 ls izHkko'khy gks x;k gS vkSj bl fujlu vf/kfu;e ds ewy vf/kfu;e dh /kkjk 20 vkSj fo'ks"k :i ls /kkjk 20¼2½ dks lajf{kr ugh fd;k x;k gSA vr% jkT; 'kklu dks ewy vf/kfu;e dh /kkjk 20¼1½ ds varxZr dk;Zokgh djus dh 'kfDr;kWa izkIr ugh gS vr% ewy vf/kfu;e dh /kkjk 20¼2½ ds varxZr nh xbZ NwV dks ewy vf/kfu;e dh /kkjk 20¼2½ ds varxZr okfil ugh fy;k tk ldrkA 2- mijksDr vfHker ds izdk'k esa vc mDr laLFkk ds }kjk /kkjk 20 ds varxZr nh xbZ NwV ds mYya?ku ds fy, dksbZ dk;Zokgh ugh dh tk ldrhA izdj.k ewyr% ----------- fd;k tkrk gSA"
27. In respect of allegation of illegal transfer of the land to Savita Grih Nirman Society, their contention is that the land was transferred under the orders and directions of the Competent Court i.e. Deputy Registrar, Cooperative Societies; and transfer of land to Deep Ganesh Cooperative Society was cancelled by return of land and consideration.
28. According to the petitioner, members of the petitioner mostly belong to a middle class family and have invested their life long savings in purchasing the plots and constructing their own residential houses. Due to delay on the part of the Competent Authority of the respondents, they could not construct their residential 14 WP (PIL) No.11003/2018 houses in time; and prayed for quashment of order dated 23.04.2018 and direction to the Indore Municipal Corporation to grant building permission to the members of the petitioner and demarcate the proposed road on the east side of the plot in a vertical line without affecting the plots of the petitioner - Residential Society.
29. Their objection is that respondent No.5 does not hold a valid registration under Rule 3 of Madhya Pradesh Nagar Palika (Registration of Colonizers Terms and Conditions) Rules, 1998. There is no compliance of provision of Rule 12-A of Madhya Pradesh Nagar Palika (Registration of Colonizers Terms and Conditions) Rules, 1998, because the development, as prescribed, has not been completed in the entire colony. There is no roads, electric, water supply, drainage and storm water lines, construction of boundary walls and other amenities, as per sanctioned development plan. The permission for diversion of land has been expired due to non compliance of conditions precedents for such permission; and registration of FIR by the Competent Authorities for the irregularities committed by respondent No.5 in development of the colony and violation of applicable provisions of Rules and Regulations. It is also submitted that respondent No.5 did not challenge the aforesaid grounds in any proceedings in any forum or court and accepted the same. One of the objections of the IMC is that no 15 WP (PIL) No.11003/2018 resolution has been passed by the members of the petitioner - Residential Society to file the present PIL.
30. As per reply of IMC, there are following irregularities, which has tied the lands of respondent No.2 to grant permission for building construction in the colony: -
(i) Respondent No.5 does not have a valid license / registration to act as colonizer under Section 292-
A pof the Madhya Pradesh Municipal Corporation Act, 1956 read with Rule 3 of Madhya Pradesh Nagar Palika (Registration of Colonizers Terms and Conditions) Rules, 1998, which provides that any person who act as a colonizer intends to undertake the establishment of a colony in the municipal area shall obtain a registration from the Commissioner, Municipal Corporation. Section 292-B of the Act, 1956 shall entitles the colonizer to undertake the development of the colonies in the municipal area subject to provisions of Act and Rules made in this behalf. Section 292-C provides for punishment for illegal colonization in breach of the requirements contemplated in this Act or Rules made in this behalf, commits an offence of illegal colonization in breach of the requirements contemplated in this Act or Rules made in this behalf, punishment under Section 292-D of the Act, 1956 has provided with a simple imprisonment which may extend to three years or with a fine which may extend to 10,000 rupees or both. Section 292-DA imposes responsibility on the persons associated in the act of illegal colonization. Since, respondent No.5 has not obtained the registration as provided under Section 292-A read with Rule 3 of the Rules, 1998, therefore, due to illegal colonization no permission for building construction can, therefore, be granted under Rule 12-A of the Rules. It is submitted that an enquiry was conducted by the Committee appointed by Collector, Indore vide order dated 18.03.2006 which has submitted its report on 24.04.2006 bringing out serious irregularities committed by respondent No.5.
16 WP (PIL) No.11003/2018(ii) Lapse of permission granted by Collector, Indore under Rule 10 of the Madhya Pradesh Vinirdishta Bhrastha Acharan Nivaran Adhiniyam, 1982 and License No.192 dated 02.03.1989 has already lapsed due to efflux of time and failure of respondent No.5 to complete the development of area 25.956 hectare as per development permission granted by Joint Director, Town & Country Planning on 02.01.1992 as the same was valid till 01.01.1993.
(iii) Provisions of Sections 24 to 32 of the Madhya Pradesh Vinirdishta Bhrastha Acharan Nivaran Adhiniyam, 1982 have been omitted in the year 1998 by the MP Act No.6 of 1998, therefore, in all cases where the license was granted by the Collector under the said Adhiniyam of 1982 and development has not been completed or the sanction of development plan has expired, such colonizers were required to obtain fresh registration under Section 292-A of the Act, 1956 read with Rules, 1998. In the present case, admittedly, respondent No.5 was granted development permission by the Joint Director, Town & Country Planning for development of an area ad-measuring 25.956 hectares and later on due to sale of part of the land, a revised development plan was sanctioned on 03.11.2004. It is further submitted that respondent No.5 did not complete the development work as per development plan sanctioned on 03.11.2004, therefore, another revised plan under Sectioni 29 (3) of the Town & Country Planning Act, 1973 has been sanctioned by the Joint Director on 28.01.2016 admitting that there is no development.
(iv) Respondent No.5 did not complete the development of 25.956 hectare and sold 5.74 hectare land to the other societies detrimental to the interest of members of the society wich resulted in reduction in the area of each plot allotted to the members. There is also allegation of siphoning of sale proceeds as per the enquiry report conducted by Collector, Indore. Therefore, there was no valid permission with respondent No.5 to develop the colony.
(v) The permission for diversion granted to respondent No.5 has also expired due to non-
17 WP (PIL) No.11003/2018compliance of various conditions stipulated therein and efflux of time.
31. From the aforesaid, the colonizer was required to obtain registration and follow Madhya Pradesh Nagar Palika (Registration of Colonizers Terms and Conditions) Rules, 1998. Respondent No.2 has acted in the larger public interest to enforce compliance of the Rules and Regulations to safeguard the interest of public at large in general and the plot holders in particular. The main reason for refusal of building permission was that the development work in the colony was not completed and respondent No.5 is not a registered colonizer; and prayed for dismissal of the writ petition.
32. A detail rejoinder has been filed by the petitioner, stating therein that prior to filing of the present writ petition, a resolution was passed by the petitioner - Residential Society. Respondent No.5 do possess license as provided under the statute.
33. As per reply of respondent No.5, respondent No.2 while rejecting the application for grant of permission for construction of residential houses, has no jurisdiction to issue other directions to the respective authorities.
34. On merit, their contention is that the impugned order has been passed on the basis of report dated 18.03.2006, whereas all the deficiencies, which were pointed out in the aforesaid report, have been cured 18 WP (PIL) No.11003/2018 / rectified. After registration of sale-deed in favour of Savita Grih Nirman Sahakari Sanstha, Office of the Collector, Indore started allocating plots in favour of members of respondent No.5. Application dated 21.01.2013 was submitted by respondent No.5 under Section 29 of the Act, 1973; and pursuant thereto, the Joint Director, Town & Country Planning Department sanctioned the revised lay out plan vide Annexure R-5/2. After completing various legal formalities, implementing / complying with the aforementioned two reports and all development work in the colony is in accordance with law and after due sanction from various authorities, there is no illegality in granting such permission.
35. As per reply of respondent No.5, all development work has already been completed, consequent to which building permission for construction of houses were granted on 23.11.1995 and application dated 15.03.2016 was virtually an application for continuance of said building permission dated 13.04.2004 (Annexure P/35), which has been illegally rejected by respondent No.2.
36. As per rejoinder dated 20.08.2018, Annexure P/34 is license of respondent No.5 under the Madhya Pradesh Cooperative Societies Registration Act, 1973.
37. In the case in hand, respondent No.5 was granted license under Madhya Pradesh Vinirdishta Bhrastha Acharan Nivaran Adhiniyam, 1982. The license was issued on 02.03.1989 to respondent No.5 for 19 WP (PIL) No.11003/2018 commencement of the development work of the colony in question. At that time, Madhya Pradesh Nagar Palika (Registration of Colonizers Terms and Conditions) Rules, 1998 was not in force, and therefore, no license under Madhya Pradesh Nagar Palika (Registration of Colonizers Terms and Conditions) Rules, 1998 is required. License to respondent No.5 was issued by the Collector, Indore (respondent No.3) in pursuance to Section 24 of Madhya Pradesh Vinirdishta Bhrastha Acharan Nivaran Adhiniyam, 1982. Once in the year 1989 license was issued in favour of respondent No.5, and subsequently no other permission was required under Madhya Pradesh Nagar Palika (Registration of Colonizers Terms and Conditions) Rules, 1998. With the aforesaid, respondent No.5 has supported the facts and grounds mentioned in the writ petition; and prayed that the writ petition be allowed.
38. We have heard the learned counsel for the parties at length and perused the record of the case.
39. In the case in hand, housing colony was developed by respondent No.5 for benefit of all plot owners somewhere in 1991. At that relevant point of time, permission for establishment of the colony and colonizer license is required to be taken from Collector of revenue district under the provisions of Madhya Pradesh Vinirdishta Bhrastha Acharan Nivaran Adhiniyam, 1982. Respondent No.5 was granted license under Section 24 of Madhya Pradesh Vinirdishta Bhrastha Acharan 20 WP (PIL) No.11003/2018 Nivaran Adhiniyam, 1982; and as per law laid down in the case of Janki Grah Nirman Cooperative Housing Society v. Collector, Jabalpur reported in 1987 MPLJ 456, colonizer license once granted cannot be cancelled, if allegations were within the knowledge of the authority at the time of grant of license; and thus, no further license under Madhya Pradesh Nagar Palika (Registration of Colonizers Terms and Conditions) Rules, 1998 is required or in absence of any license under the aforesaid Rules of 1998, it cannot be said that the colony is an illegal.
40. In the case of Paras Life Style Private Limited v. State of Madhya Pradesh (supra), applications for grant of development and building permission was pending and subsequently Section 292-A and Section 292-B of the Madhya Pradesh Municipal Corporation Act, 1956 came into force with effect from 21.04.1997 and rules made thereunder were amended. The contention in the case of Paras Life Style Private Limited v. State of Madhya Pradesh (supra) was rejected, that their applications should be processed and directed to be decided according to the un-amended law existing on the date of their applications. The Division Bench has held that no right accrued to them for having their applications processed and decided, according to the un-amended statutory provisions; processing and decision of the applications has to be done in accordance 21 WP (PIL) No.11003/2018 with statutory provisions applicable on the date, when permission for sanction is accorded.
41. The decision in the case of Paras Life Style Private Limited v. State of Madhya Pradesh reported in 2012 (1) MPLJ 690 cited by respondent No.2 / Indore Municipal Corporation is distinguishable on facts; and will not be applicable in the present facts and circumstances of the case.
42. As per Annexure P/33, resolution was passed in the meeting of the petitioner - society on 26.04.2018; and thus, objection regarding maintainability of the writ petition has no force.
43. IA No.3895/2018, an application on behalf of 22 proposed interveners, seeking intervention in the petition has been filed on the ground that they being the bona fide purchaser of the plots and respondent No.5 society has not completed the development work in the colony and possession of the plot are also not handed over to the proposed interveners, and therefore, they prayed that the interest of all the members of respondent No.5 society be safeguarded by directing the society to handover possession of the plots to all the Members after completing the development of the colony.
44. Respondent No.5 is a registered society under the provisions of the Madhya Pradesh Society Registration Act, 1973 and inter se dispute like allotment of plot and their Membership and seniority between the petitioner and proposed interveners cannot be decided in 22 WP (PIL) No.11003/2018 the present writ petition, because the petitioners are having statutory remedy under the provisions of Madhya Pradesh Cooperative Societies Act, 1960 by raising dispute before the Deputy Registrar, Cooperative Societies; and thus, we reject IA No.3895/2018.
45. As per impugned order dated 23.04.2018 (Annexure P/30), Municipal Corporation Indore is heavily relying in respect of the action proposed by the Collector, Indore in 2007, without considering the fact that after report dated 26.04.2008, respondent No.5 - society has taken remedial measures adhered to instructions of Registrar, Cooperative Societies and called Special General Meeting of the Society under Section 50 of the Madhya Pradesh Cooperative Societies Act, 1960 and on the basis of the resolution which was passed on 25.02.2007, cured all the deficiencies, as pointed out in the enquiry report. Thereafter Special General Meeting was called on 14.06.2009 and it was unanimously resolved to get new development plan and lay out plan so that maximum number of member of the society can get plots. After preparation of the fresh development plan, the same was submitted before the Authorities and was also duly intimated to the member in annual general meeting of the society convened on 27.12.2009. Amended law out plan was sanctioned by the Competent Authority on 28.01.2016 and on 15.03.2016, the society applied for grant of building permission before the Indore Municipal Corporation.
23 WP (PIL) No.11003/2018On 02.04.2016, a letter was received from the Corporation to fulfill certain conditions, which were fulfilled by respondent No.5 on 16.05.2016. The Cooperative Department, after verification, submitted a report on 16.03.2017 to the effect that all procedure for sanction of layout plan during the year 2009 to 2016 have been legally done, keeping in view interest of members and earlier order passed showing irregularities and initiation of penal action have already been complied with. After passing of the impugned order, a letter was issued by the Deputy Commissioner, Cooperative Societies on 27.04.2018 informing respondent No.2 that all the development work in the colony is in accordance with law and after obtaining due sanction from various authorities and there is no illegality in granting such permission. The Indore Municipal Corporation, without verifying the aforesaid facts, so also the amended layout plan, which was sanctioned by the Competent Authority, development work and all the deficiencies have been rectified and thereafter applied for building permission; thus acted illegally in rejecting the application for building permission. This shows working of the Indore Municipal Corporation. In Indore Municipal Corporation, there are as many as more than hundred colonies developed by the Cooperative Societies, but except in the case of the petitioner, no action has been taken against other Cooperative Housing Societies. This shows that the Authorities of the Municipal Corporation 24 WP (PIL) No.11003/2018 were bent upon to some how reject building permission. The respondent No.2 - Municipal Corporation acted without jurisdiction while directing the Collector, Indore to revoke / cancel the exemption granted under Section 20 (1) of Madhya Pradesh Urban Land (Ceiling & Regulation) Act, 1976, knowing well that the aforesaid Act has been repealed and as per letter dated 08.04.2008 (which has been reproduced in the preceding paragraph) no action could be taken for revoking the exemption. This direction has been issued only in respect of respondent No.5 - society. Respondent No.2 - Municipal Corporation in its reply taking shelter of execution of sale deed of a part of the society land in favour of Savita Grih Nirman Sahakari Society, which has been done in pursuance to judgment and decree passed on 13.06.2005. Once dispute preferred by Savita Grih Nirman Sahakari Society has been decided and judgment & decree is passed against respondent No.5 - society, then the society has no option but to execute the sale deed in favour of the aforesaid society. Thus, it cannot be said that respondent No.5 - society violated any terms and conditions of the original permission / grant.
46. No land of the society was transferred in favour of Deep Ganesh Cooperative Society. Municipal Corporation without verifying the same, made an observation that the society has alienated part of the land in favour of Deep Ganesh Cooperative Society.
25 WP (PIL) No.11003/201847. It is not in dispute that after granting neces sary permission for development of colony, Indore Mu nicipal Corporation granted building permission on 23.11.1995. Earlier the development of the colony was not as per norms and, therefore, a committee was consti tuted by the Collector, Indore who after examining the matter submitted its report on 18.03.2006 and thereafter amended lay out plan was sanctioned on 28.01.2016. Thereafter vide Annexure-P/21 on 15.03.2016 society ap plied for building permission before respondent No.2. On receipt of the aforesaid, respondent No.2 vide letter dated 02.04.2016 directed for fulfilling certain condi tions which have been fulfilled and letter to this effect was issued on 16.05.2016. One of the conditions was to withdraw the civil suit. The society accepted the said condition and withdrawn the civil suit. From the afore said, it is clear that necessary compliance has been made much prior to 23.04.2018. Thus, it is difficult to accept the submission of respondent No.2 that the order im pugned in the writ petition was not vitiated as the same was not arbitrary or mala fide. The complaint of dis crimination on the ground that the societies similarly sit uated have been granted building permission but in the case in hand, respondent No.2 illegally rejected the prayer. It has also been pointed out that road has to be sanctioned as per Indore Development Plan and once the lay out plan was sanctioned originally in 1992 and 2004, 26 WP (PIL) No.11003/2018 no deviation of road is permissible because the same has to be as per Indore Master Plan.
48. In the case in hand, the procedure prescribed under the Adhiniyam, 1973 and the rules made therein so also the provisions of Municipal Corporation, 1956, the discretion vested in the Municipal Corporation to grant building permission has to be exercised properly. They cannot reject the prayer for grant of permission at their whims and fancies. Due to non-grant of permission, all the members of the societies are suffering because in spite of allotment of plot, they have not constructed their houses and cost and construction has been escalated.
49. For the reasons aforementioned, we are of the view that impugned order dated 23.04.2018 (Annexure P/30) (which has been passed even without granting any opportunity of hearing to the petitioner) cannot be sus tained and, therefore, we quash order dated 23.04.2018 (Annexure P/30) and direct respondent No.2 to consider the application for grant of sanction in the light of com pliance made by respondent No.5 - society from time to time and statutory permissions granted by the Authori ties and grant sanction within a period of thirty days from the date of filing of certified copy of this order; or compliance made by respondent No.5 on 16.05.2016 (Annexure P/22), so that members of the society may take appropriate steps for construction of their houses, in accordance with law.
27 WP (PIL) No.11003/201850. Accordingly, Writ Petition No.11003/2018 is allowed, but, in the facts and circumstances of this case there shall be no order as to costs.
(P.K. Jaiswal) (Vivek Rusia)
Judge Judge
Pithawe RC
Digitally signed by Ramesh Chandra Pithwe
Date: 2018.11.02 17:20:16 +05'30'