Madhya Pradesh High Court
Urmila Shivhare vs The State Of Madhya Pradesh on 23 January, 2018
1 W.P. No.3797 of 2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
SB : HON'BLE SHRI JUSTICE SUBODH ABHYANKAR, J
WRIT PETITION NO.3797 OF 2017
Urmila Shivhare
Vs.
State of Madhya Pradesh and others
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Present :-
Shri Shashank Shekhar, Advocate for the petitioner.
Shri G.P. Singh, Government Advocate for the respondent No.1/State.
Shri Mrigendra Singh, Senior Advocate with Shri Saurabh Sunder,
Advocate for the respondents No.2 and 3.
ORDER
(Passed on this the 23rd day of January, 2018) This petition is filed under Article 226 of the Constitution of India seeking following reliefs :
"(i) That, this Hon'ble Court may kindly be pleased to hold that the case of the petitioner falls within section 295(3) of the Act of 1956 i.e. the deeming clause.
(ii) That, this Hon'ble Court may kindly be pleased to direct the respondents to consider the map of the petitioner sanctioned as per deeming clause of Section 295(3) and they may be refrained from extending oral threats of demolition 2 W.P. No.3797 of 2017 of the house.
(iii) Any other relief/reliefs order/orders, direction/directions which this Hon'ble Court may deems fit and proper may kindly be granted to the petitioner including the cost of petition."
2. The petitioner's contention is that she owns the property ad-measuring 5068 sq ft at khasra No.16 of Mouza Katanga, Jabalpur which was bequeathed to her through a Will executed by her mother-in-law and the same has been mutated in her name by an order passed by the Tehsildar.
3. The petitioner's contention is that her mother-in-law had purchased the aforesaid property through registered sale deed dated 19.4.1989 and in the year 1994 sought sanction of the proposed map for construction which was duly granted by the respondent authorities and accordingly the construction was completed.
4. It is further submitted that on 12.12.2013 on account of certain repair/renovation work the petitioner again applied for sanction of a new map. The aforesaid application was not entertained by the respondents and no order was passed. A representation was also preferred by the petitioner on 3.1.2014 3 W.P. No.3797 of 2017 but again there was no response from the respondents. Another representation was preferred on 7.3.2015 and subsequently on 9.11.2015 again the petitioner sought sanction of another map.
5. It is the petitioner's further case that as no communication was made by the respondents in this behalf, hence the petitioner proceeded with the construction work according to the submitted plan but soon thereafter on 7.4.2016, 25.7.2016, 1.9.2016 and finally on 24.12.2016 the Building Officer forwarded the last notice to the petitioner under Section 307(3) of the M.P. Municipal Corporation Act, 1956 (hereinafter referred to as 'the Act of 1956') whereby it was informed to the petitioner that without any proper sanction she has commenced the construction work, hence the same is liable to be removed and vide Annexure P/9 dated 5.9.2016 the petitioner replied to the aforesaid notice and informed the respondents that as all her efforts to get the map sanctioned failed, hence the construction was carried out and the petitioner also prayed that if there is any construction which is not as per norms than also she is ready to compound the alleged illegal construction carried out by her. On 4.3.2017 the petitioner again submitted an application for 4 W.P. No.3797 of 2017 compounding of the alleged illegal construction work as her earlier efforts to get the map sanctioned failed, however, on 24.12.2016 a notice was sent to the petitioner for removal of the construction work and her house was also visited by the concerned officer on 4.3.2017. Thus, in sum and substance, the petitioner's contention is that the map under Section 295(3) of the Act of 1956 shall be deemed to be sanctioned by the deeming clause and further, that she is entitled to compound the alleged illegal construction, if any. It is also prayed that the respondents be restrained from pulling down the construction which was allegedly legally initiated by the petitioner. Counsel for the petitioner has relied upon the decision of the Chhattisgarh High Court in the case of Raj Kumar College Society and another vs. State of M.P. (Now Chhattisgarh) and others, 2002 (2) MPHT 12 (CG).
6. On the other hand, learned senior counsel appearing for the respondent - Municipal Corporation has vehemently opposed the prayer of the respondents and it is submitted that despite repeated notices the petitioner has not stopped the construction work and has continued the same despite knowing 5 W.P. No.3797 of 2017 that the construction which is being raised is illegal. The counsel has also relied upon the last show cause notice dated 24.12.2016 issued to the petitioner and has also relied upon the earlier notice to the petitioner and it is submitted that the petitioner is running commercial activities in the building without any sanction despite the fact that the building was for the residential purposes only. It is further submitted that the petitioner's contention that the map shall be deemed to be sanctioned under the provisions of Section 295(3) of the Act of 1956 cannot be accepted as the map submitted by the petitioner was already rejected by the authority of the answering respondents on 14.6.2016 and the same was also communicated to the petitioner.
7. A rejoinder to the aforesaid reply has also been filed by the petitioner wherein it is stated that no order of refusal of her application for sanction of map was ever received by her. It is also stated by way of an affidavit that no commercial activity is going on in her building.
8. To the aforesaid rejoinder, the respondents have also filed an additional reply in which it is stated that the petitioner 6 W.P. No.3797 of 2017 submitted her plan for approval on 18.12.2013 and owing to certain lacunae found therein, the same was rejected on 23.12.2013. A copy of the dispatch register is also filed in support of this contention.
9. Heard learned counsel for the parties and perused the record.
10. The petitioner's contention is that she has submitted her map for sanction on 18.12.20213 which, in the absence of any specific refusal within 30 days, should be deemed to be accepted under s.295(3) of the Act of 1956. At this juncture, it would be apt to refer to s.295(3) which reads as under:
"295. Commissioner to refuse erection or re-erection of buildings:
(1) .....
(2)......
(3) Notwithstanding anything contained in sub- section (2) but subject to the provisions of sub-section 10 of section-291 if the Commissioner within thirty days of the receipt from any person of a valid notice of such person's intention to erect or re-erect a building, or within sixty days of such receipt if the notice relates to a building on the same or part of the same site on which sanction for the erection of a building has been refused within the previous twelve months, neglects or omits to pass orders sanctioning or refusing to sanction such erection or re-erection, such 7 W.P. No.3797 of 2017 erection or re-erection, shall, unless the land on which it is proposed to erect or re-erect such building belongs to or vests in the Corporation, be deemed to have been sanctioned, except in so far as it may contravene any rule or byelaw or any town-
planning schemes sanctioned under this Act or any other enactment for the time being in force:
Provided that if an order granting or refusing such sanction is suspended under section 421 the period specified by this sub- section shall commence to run afresh from the date of communication of final orders under the said sanction by the Government."
(emphasis supplied)
11. Thus, the aforesaid section makes it clear that if no orders sanctioning or refusing to sanction such erection or re- erection are passed then such erection or re-erection, shall be deemed to have been sanctioned. In the present case, the application for sanction of map was submitted on 12.12.2013, the thirty days from which would expire on 11.01.2014. The respondent, in their additional reply has submitted that it was refused immediately on 23.12.2013, however, no such claim regarding refusal of the map has been made by the respondents in their initial reply which is rather surprising. Even in the additional reply no such order rejecting the map has been filed 8 W.P. No.3797 of 2017 by the respondents which gives rise to the veracity of the statement made by the respondents. Apart from that the respondents have also submitted in their reply that the map presented by the petitioner was canceled on 14.06.2016 which belies the subsequent claim of the respondents that it was rejected on 23.12.2013 only. This leads to the only inescapable conclusion that the map submitted by the petitioner on 12.12.2013 shall be deemed to be sanctioned in the absence of any refusal of the same by the respondents.
12. So far as applicability of s.307 of the Act of 1956 to the present case is concerned, this court is of the considered opinion that the said issue has already been answered by the Chhattisgarh High Court in the case of Raj Kumar College Society (supra) that s.295 of the Act is not controlled by s.307 so far it relates to deemed sanction. Thus, the notices issued to the petitioner u/s.307 of the Act cannot be issued to demolish the building of the petitioner on the ground that no previous sanction was obtained, however, no such restriction is there if it is for the removal or alteration of work not in conformity with the byelaws or any scheme or any other requirement. 9 W.P. No.3797 of 2017
13. Coming to the question of compounding of the illegal construction of the petitioner, this Court is of the considered opinion, that it can be done within the fore-corners of s.308-A of the Act. Hence, if such an application is made by the petitioner to the respondents within a period of two weeks from today, the same shall be considered by the respondents within a further period of six weeks therefrom.
14. With, the aforesaid observations, the petition stands allowed to the aforesaid extent.
15. Parties to bear their own costs.
(Subodh Abhyankar) Judge 23/01/2018 DV Digitally signed by DINESH VERMA Date: 2018.01.24 16:54:50 +05'30'