Madhya Pradesh High Court
Pramod Kumar Sethi vs Indore Municipal Corporation on 5 March, 2018
HIGH COURT OF M.P. BENCH AT INDORE
(R.P.NO.337/2017)
Pramodh Kumar Sethi V/s. Indore Municipal Corporation & Anr.
R.P. No.337/2017
Indore dt:-5.03.2018
Shri A.K. Chitle, learned Senior Advocate with Shri M.
Verma, Advocate for the review petitioner.
Shri Manoj Munshi, learned counsel for the
respondents.
Heard.
2. The writ appeal of the review petitioner has been dismissed on merit by passing the following order :-
"2. The appellant is a real estate developer. A lay out plan was sanctioned by the Joint Director, Town and Country Planning Authority vide order dated 31.12.2014 and the building permission under the Bhumi Vikas Rules, 2012 (herein after referred as 'Rules of 2012') was granted by the Building Officer - respondent No.2 on 21.5.2015. The appellant had started the construction work on 9.6.2015 and due intimation in this regard was given to the respondent No.2. Thereafter, after five months, the respondent No.2 has issued show cause notice dated 7.11.2015 for revocation of the building permission on the ground that adequate parking area as required by the Rules of 2012, has not been provided and thereafter opportunity of hearing was given to the appellant and vide order dated 29.4.2016, building permission was revoked. He challenged the order by filing W.P.No.3319/2016.
3. The learned writ court considering the fact the appellant has been granted permission for built up area of 1767.54 Sq. Mtr. in the plot size of 1476.82 sq.mtr., has been appendix 1-1 and 1-2 of Rule 84 of Rules of 2012, the town for having population more than 7,50,001 for the mercantile occupancy one plot parking at the rate of 50 Sq. Mtr., built up has been provided. There is a deficiency of 16 car parking space in the petitioner's proposed construction plan. The population of the city is more than 7,50,000 and, therefore, the learned authority rightly treated to be a mercantile building as defined in Explanation (v) and Rule 2 (45) of Rules of 2012. There is a shortage of 16 car parking space and also shortage of 52.5 Sq. Mtr., area for loading and unloading of material. The construction of the appellant is in violation of the Rules specifically relating to parking area and dismissed the writ petition. Relevant part of the order reads as under :-
HIGH COURT OF M.P. BENCH AT INDORE (R.P.NO.337/2017) Pramodh Kumar Sethi V/s. Indore Municipal Corporation & Anr.
"Having heard the learned counsel for parties and on perusal of the record, it is noticed that by the impugned order dated 29/4/2016 the building permission granted on 21/5/2015 has been revoked on the ground that the provision for parking has not been made as required by the Madhya Pradesh Bhumi Vikas Rules, 2012 (for short "Rules of 2012"), and that there is shortage of 16 car parking space and also shortage of 52.5. Sq. Mtr. Area for loading and unloading of material.
The impugned order has been passed after fully complying with the principles of natural justice. Before passing the impugned order, show cause notice dated 7/11/2015 was given to the petitioner disclosing the grounds on which the action was proposed to be taken and thereafter the petitioner was also given opportunity of hearing after submission of the reply to the show cause notice. Hence, the impugned order cannot be faulted on the ground of any procedural irregularity or non compliance of the principles of natural justice."
So far as the issue of providing adequate space for car parking is concerned, the reply of the respondents reveals that the petitioner has been granted permission for built up area of 1767.54 sq.mtr in the plot size of 1476.82 sq.mtr. The allegation of the respondents is that adequate parking space as per Rule has not been provided. Rule 84 of the Rules of 2012 dealing with the parking area provides as under:-
84] Parking space.-(1) The norms for providing parking on the plot and in areas other than the plot shall be in accordance with the norms given in the APPENDIX 1-1 and 1-2, respectively.
(2) Standalone multi-level public parking may be permissible in residential, commercial, PSP,Industrial, recreational, agriculture and transportation land use classification. 5% of the built up area of the parking structure may be used for commercial activity. Other planning norms for such stand alone parking buildings shall be as below :
MOS (Front) : 12 meters
All other sides : 7.5 meters
Ground Coverage : maximum 80 per cent
Building Height : to be determined in
each case by the Authority.
As per the aforesaid Rule, the norms of parking has given in Appendix I-1 and I-2 respectively and to be adhered to.
As per Appendix I-1 for the town having population more than 7,50,001 for the mercantile occupancy one plot HIGH COURT OF M.P. BENCH AT INDORE (R.P.NO.337/2017) Pramodh Kumar Sethi V/s. Indore Municipal Corporation & Anr.
parking @ 50 sq.mtr built up has been provided. Calculating at this rate, there is a deficiency of 16 car parking space in the petitioner's proposed construction plan.
Counsel for petitioner has referred to the sanction map filed as Ex.P/2 and has submitted that the map provides for the storage room in the upper basement floor and the showrooms in that floor and offices also in other floors, therefore, parking area for the storage is required to be separately calculated which is provided under Appendix I-1 as @ 75 sq.mtr built up, but such a submission cannot be accepted because Rule 2(45) sub Rule (v) contains inclusive deflation of mercantile building comprising of shops, stores, market for display and sale of merchandise either wholesale or retail, storage and service facilities incidental to sale of merchandise etc whereas under Sub rule (vii) the storage building has different meaning and connotation which includes warehouse, cold storage building used primarily for storage or sheltering of goods etc. Rule 2(45) Explanation (v) & (vii) defining mercantile building and storage building are reproduced here under:-
"(v) "mercantile Building" means any land or building or part thereof which is used for the purpose of carrying on any trade, business or profession or sale or exchange of goods or services of any type whatsoever with a view to making profit and also includes the use of any land or buildings for storage of goods or as an office or as hotel and includes any building or part of a building which is used as multiplex, shops, stores, markets, for display and sale of merchandise either wholesale or retail. Storage and service facilities incidental to the sale of merchandise and located in the same building shall be included under this group."
"[vii] "storage building" means any building or part of a building used primarily for the storage or sheltering of goods, wares or merchandise and includes warehouses, cold storages, freight depots, transit shades, store houses, public garages, hangers, truck terminals, grain elevators,"
Having regard to the aforesaid Rules, the building permission granted to the petitioner cannot be held to be for the storage building, but it has been rightly treated to be a mercantile building by the respondents. Thus, the respondents have rightly reached to the conclusion that there is deficiency of parking area.
The impugned order also reveals that the provision to the extent of 52.5 mtr for loading and unloading was required to be made which has not been made. One of the clause of Appendix of HIGH COURT OF M.P. BENCH AT INDORE (R.P.NO.337/2017) Pramodh Kumar Sethi V/s. Indore Municipal Corporation & Anr.
I-1 also requires to leave the open space as loading or unloading space, but that has also not been provided. Hence, the reasons which has been assigned by the respondents for revocation of the building permission is right.
The next issue is whether the respondents are empowered to cancel the building permission once granted. The permission which was granted on 31/12/2014 by the Jt. Director, Nagar Tatha Gram Nivesh Adhiniyam clearly stipulates that the permission was under Rule 27(1) and Rule 2(5) of the Rules of 2012. In the said order it was provided that the petitioner will have to provide one car parking @ 50 sq.mtr built up area. Clause 21 of the said order clearly states that the building permission could be revoked under Rule 25 of the Rules of 2012.
The building permission by the Municipal Corporation was granted on 21st May, 2015 under Rule 27 of the Rules of 2012. This also contains the condition that the building permission could be revoked under Rule 25 of Rules of 2012. Clause 16 of the main condition of this order provides as under:-
16& Hkwfe fodkl fu;e&2012 ds fu;e 84¼1½ vuqlkj ikfdZax j[kuk gksxk rFkk fodz; izfrcaf/kr jgsxkA Hence on 21/5/2015 itself ie. before commencement of construction, it was within the knowledge of the petitioner that the parking is to be provided in terms of Rule 84(1) of the Rules of 2012.
The respondents have revoked the building permission under Rule 25 of the Rules of 2012 which in clear terms provides that :-
"25] Revocation of permission.-- The Authority may suspend or revoke any permission granted by it under the provisions of these rules if it has reasons to believe that such permission has been obtained on the basis of false statement or any misrepresentation of any material fact or that the conditions imposed in the permission have been violated or that the provisions of the Act or rules made thereunder have not been observed: Provided that no such order shall be passed unless the person who obtained such permission has been given an opportunity of being heard: Provided further that such order of revocation or suspension may be annulled if the applicant cures the violation of the Act or the rules or any conditions imposed in the permission. However where the permission has been obtained on the basis of a false statement or any misrepresentation of any material fact no such order of revocation shall be annulled."
HIGH COURT OF M.P. BENCH AT INDORE (R.P.NO.337/2017) Pramodh Kumar Sethi V/s. Indore Municipal Corporation & Anr.
Since the condition mentioned in the order granting building permission relating to the parking area has been violated, therefore, Rule 25 has rightly been revoked.
The second proviso of the above Rule 25 gives an option to cure the violation of the Act or the Rules or any condition imposed in the permission, therefore, in the impugned order itself the petitioner has been given the option to file the revised plan by making necessary provision for parking as required by the law.
The petitioner has also raised an issue that u/S.299 of the Municipal Corporation Act, after commencement of construction, the building permission cannot be revoked.
Though the respondents have responded to it by taking the stand that the building permission was granted under the provisions of Rules of 2012, therefore, invoking Rule 25 of the concerned Rules, it has been revoked, but this Court is not going into the said question because equitable jurisdiction under Article 226 of the Constitution cannot be invoked to perpetuate the illegality. Once it has been found that the petitioner is raising construction in violation of the Rules specifically relating to the parking area, this court will refrain from issuing any direction to carry out the construction which is contrary to the Rules.
So far as the petitioner's contention that the respondents themselves had sanctioned the map and the construction is as per the map, such a contention does not help the petitioner because in the orders granting building permission dated 31/12/2014 and 21/5/2015 the provisions relating to the parking area was clearly stipulated and made known to the petitioner.
Counsel for petitioner has placed reliance upon the judgments in the matter of Nagar Palika Nigam, Gwalior Vs. Gopal Krishna reported in 2006(2) MPLJ 515 and Adarsh Thok Fal Sabji Vikreta Vyapari Sangh and another Vs. State of MP and others reported in 2010(1) MP 388 but the same are no help to the petitioner because the same are distinguishable on their own facts. Keeping in view the aforesaid analysis, I do not find it to be a fit case for interfering in the impugned order, hence the writ petition is dismissed.
5. Learned counsel for the appellant has drawn our attention to the second proviso of Rule 25 of Rules of 2012 and submits that if appellant (cures the violation of the Act or the Rule or if any condition imposed in the permission) then the sanction granted by the Municipal Corporation cannot be revoked. He has drawn our attention to the sanction order dated 31.12.2014 and submits that the construction was as per the terms and conditions on the ground that there is no violation of the HIGH COURT OF M.P. BENCH AT INDORE (R.P.NO.337/2017) Pramodh Kumar Sethi V/s. Indore Municipal Corporation & Anr.
any of the mandatory provision of the Rules and prays for setting aside of the impugned order.
6. Per contra, Shri Munshi, learned counsel for the respondents has submitted that the appellant did not comply with the terms and conditions of the building permission and also the Rule provided under the Rules of 2012.
7. As per Clause 3 of the building permission and Rule 31 of the Rules of 2012, it shall be the responsibility of the appellant to carry out the construction work in accordance with the Rules of 2012. Relevant part of the sanction order dated 21.2.2014 (Annexure P/1) reads as under :-
e-iz- uxj rFkk xzke fuos'k vf/kfu;e] 1973 dh /kkjk 29¼3½ lgifBr e-iz- Hkwfe fodkl fu;e] 2012 ds fu/kkZfjr izk:i esa nSfud lekpkj i= bUnkSj lekpkj esa foKfIr izdkf'kr fnukad 12@12@2014 ,oa ubZnqfu;k esa izdkf'kr foKfIr fnukad 11@12@2014 ls iUnzg ¼15½ fnol rd dksbZ vkifRr bl dk;kZy; dks izkIr ugh gqbZ gSA vr% izLrqr la'kksf/kr vfHkU;kl dh Lohd`fr vkosnd }kjk izLrqr nLrkostksa] 'kiFk i= ,oa QhYM cqd ds vk/kkj ij dLck bUnkSj ¼vksYM iykfl;k½] ftyk bUnkSj esa fLFkr Hkw[k.M dzekad 24 dqy jdck 1467-82 oxZehVj okf.kfT;d mi;ksx gsrq la'kksf/kr LFky vuqeksnu gsrq e-iz- uxj rFkk xzke fuos'k vf/kfu;e 1973 dh /kkjk 30¼1½¼[k½ ,oa e-iz- Hkwfe fodkl fu;e 2012 ds fu;e 27¼1½ ,oa 2¼5½ ds v/;;hu jgrs gq, fuEu 'krksZ ds lkFk fd;k tkrk gSA 1- bl la'kksf/kr vuqKk ds QyLo:i iwoZ esa bl dk;kZy; ds Kki dz- 4799@,l-ih-&559@11@uxzkfu@2013] fnukad 01@06@2013 }kjk Lohd`r vfHkU;kl izHkko'kqU; ekuk tkosaA 2- iz'uk/khu Hkwfe ij fu;kstu ekin.M bl izdkj ekU; gksaxs %& v& xzkm.M dojst 50-0 izfr'kr vf/kdre c& ,Q-,-vkj- 1%1-5 vf/kdre l& ,e-vks-,l- layXu ekufp= vuqlkjA n& Hkou dh Å¡pkbZ 12-50 ehVj vf/kdreA M& ikfdaZx % ,d dkj ikfdaZx izfr 50-0 oxZehVj fufeZr {ks= dh nj lsA
8. Serial No.6 of Clause 1 (3) of table on plot parking spaces is as per Appendix - 1-1 framed under [Rule 84(1)] of the Rules of 2012 reads as under :-
"I-1. (1) The spaces to be left out for on-plot parking as given in I-2 to, I-6 shall be in additions to the open spaces left out for lighting and ventilation purposes as given in rule-82. However, one row of car parking may be provided in the front open spaces of 12 meters without reducing the clear vehicular HIGH COURT OF M.P. BENCH AT INDORE (R.P.NO.337/2017) Pramodh Kumar Sethi V/s. Indore Municipal Corporation & Anr.
access way to less than 6 meters.
I-2. Each On-Plot parking space provided for motor vehicles (car) shall not be less than 13.75 square meters area and for scooters and cycles the parking spaces provided shall not be less than 1.25 square meters and 1.00 square meter, respectively."
Sr. Mercantile @ 50 sq.m. @ 75 sq.m. @ 100 sq.m. built up @ 125 sq.m.
No. built up built up
9. Clause B of Note No.1 of Appendix - I-1 & 1-6 are relevant which reads as under :-
(b) Other type of vehicles.- For non-residential building, in addition to the parking areas provided in (a) above, 25 to 50 percent additional parking space may be provided for parking other types of vehicles keeping in view the nature of traffic generated in the city.
10. Admittedly, the appellant has not provided the parking space as contemplated under the Rules of 2012 and has failed to discharge the responsibility and duty as contemplated under Section 21 of the Rules of 2012 and Clause (3) of the building permission. The Joint Director and Country Planning has also stipulated the condition of parking space in the development permission dated 31.12.2014 and required the appellant to provide "1 car parking space for 50 Sq. Mtr." of built up area. As per Clause 16, which has been quoted by the learned writ court in the impugned order, the appellant shall provide parking space as per Rule 84(1) of the Rules of 2012 and such parking space shall not be sold. In addition to car parking there shall also be parking space for type of vehicle, which would be 25% to 50% of the total care parking space and an additional parking space of 26.25 Sq. Mtr. for loading and unloading activity for every 1000 Sq. Mtr. of floor area or thereof is required. Rule 84(1) read with Appendix - 1-1 of the Rules of 2012 provides the arithmetic calculation for car parking space under Clause 1-2 and Clause I-3(a) and for other vehicles under Clause 1-3(b) and for loading and unloading activities additional parking space as per clause 1-6 of the Appendix I-1 read with Rules 84(1).
11. The appellant violated the conditions imposed in building permission dated 21.5.2015 and development dated 31.12.2014, Rule 84(1) read with Appendix I-1 of Rules of 2012. From the record, he failed to point out the violation of the aforesaid provision in respect of the parking area and thus, we are of the view that the appellant himself is the author of the situation. No case to interfere with the impugned order as prayed is made out. W.A.No.318/2017, has no merit and is, accordingly, dismissed.
3. Learned Senior counsel for the review petitioner submits that the review petitioner has made huge investment in constructing the building and, therefore, it would not be proper to dismental the same on the ground HIGH COURT OF M.P. BENCH AT INDORE (R.P.NO.337/2017) Pramodh Kumar Sethi V/s. Indore Municipal Corporation & Anr.
that he has violated the condition imposed in building permission dated 21.5.2015 and development permission dated 31.12.2014 and Rule 84(1) read with Appendix 1-I of M.P. Bhoomi Vikas Rules, 2012. We have dealt with each and every aspect of the matter and relevant provisions of Municipal Corporation Act, 1956 and M.P. Bhoomi Vikas Rules, 2012. There is no error apparent on the face of the record. No case is made out to review the order dated 27.6.2017, passed in W.A.No.318/2017 or issue any direction to the petitioner to file a representation before the respondents so as to consider the same and decide it a fresh. The issue has already been dealt with by the Division Bench on merit.
4. The review petition filed by the petitioner for reviewing the order dated 27.6.2017, has no merit and is, accordingly, dismissed.
(P.K. JAISWAL) (VIRENDER SINGH)
JUDGE JUDGE
SS/-
Digitally signed by
Shailesh Sukhdev
Date: 2018.03.08
16:21:32 +05'30'