Madhya Pradesh High Court
Choudhary Noor Jamal vs The State Of M.P. And Ors. Judgement ... on 11 April, 2014
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Writ Petition No.6145/2002
Writ Petition No.15960/2012
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
Writ Petition No.6145/2002
Choudhary Noor Jamal ............Petitioner
Versus
State of Madhya Pradesh and others ........Respondents
_____________________________________________
Shri A.P. Shroti, learned counsel for the petitioner
Shri Vivek Agarwal, learned Dy. Advocate General for the
respondents/State.
Shri Vijay Pandey, Advocate for the Municipal Corporation,
Bhopal.
Shri D.K. Dixit, learned counsel for the intervenor.
Smt. Shobha Menon, learned Senior Advocate with Shri Rahul
Choubey, counsel for the intervenor.
Writ Petition No.15960/2012
Mohammad Rafiq Khan ............Petitioner
Versus
Board of Revenue Gwalior and others ........Respondents
Shri A. Usmani, learned counsel for the petitioner.
Shri Vivek Agarwal, learned Dy. Advocate General for the
respondents/State.
Shri Vijay Pandey, Advocate for the Municipal Corporation,
Bhopal.
CORAM
Hon. Shri Justice A.M.Khanwilkar, Chief Justice
Hon. Shri Justice K.K. Trivedi
Whether approved for reporting ?
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Writ Petition No.6145/2002
Writ Petition No.15960/2012
ORDER
(11.04.2014) Per A.M. Khanwilkar, Chief Justice (Oral):
Heard counsel for the parties.
All the interlocutory applications filed in the respective petitions can be disposed of together by this common order.
2. Writ Petition No.6145/2002 was filed as Public Interest Litigation praying for direction against the respondents to remove encroachments and restore the natural beauty of Siddique Hasan Tank in public interest. While considering the said issue, this Court passed the following orders on 3.2.2005:
"By interim order dated 25.2.2003, this Court directed Commissioner, Municipal Corporation, Bhopal to check the encroachments in regard to Siddique Hassan Talab and take steps for removal of such encroachments immediately with the help of the police. Thereafter, several applications were filed by persons claiming to be the owners of portions of the land, which according to petitioner is a Talab.
In view of its further order was passed on 17.12.2003 directing that show cause notice should be issued where structures have been put up making it clear that fresh construction or fresh filing up of the tank should not be undertaken.
On 12.10.2004, it was stated by the Corporation that a plan would be prepared showing the water body in Siddique Hassan Tank, and the areas in regard to which title claimed under several decrees of the Civil Court, and the areas occupied by structures.
In pursuance of it, Municipal Corporation, Bhopal has filed an affidavit dated 31.1.2005. It is stated in the affidavit that out of the total area of 11.99 acres of Siddique Hassan Tank, an extent of 3.96 acres (approximately 4 3 Writ Petition No.6145/2002 Writ Petition No.15960/2012 acres) is covered by constructions, an area of 5.19 acres is covered by water and 2.835 acres is open reclaimed land.
The Municipal Corporation has stated that it will take steps to restore the lake (Talab) to an extent of 8 acres and leave the remaining constructed area of four acres undisturbed in view of the Civil Court decrees, subject to further orders in this petition.
It is alleged that there are about 200 persons claims to be owners of different portions of the four acres of constructed area. All of them are not before us. It is stated that the revenue records continue to show the entire extent of 11.99 acres as Talab, belonging to the Bhopal Municipal Corporation. The corporation has filed the sketch showing the water body, reclaimed area (by filing) and the area covered by construction. The Corporation should therefore take up the task of identifying the area which should be preserved as tank protected by constructing a Bund or fence and also identify the different bits of land in the four acres of the Talab, which has already been converted into houses. This exercise is necessary so that further encroachment could be prevented and at the same time, the rights of the persons who have obtained decrees is safe guarded.
Learned counsel for the Municipal Corporation submits that though development of the Talab area may take some time, steps will be taken to protect the Talab (excluding the constructed area) by constructing a bund or fence.
Three months time is given to the Municipal Corporation to submit its further report. List after three months."
(emphasis supplied)
3. The Court recorded the assurance given by the Municipal Corporation that it will restore the Lake (Talab) to the extent of eight acres and leave the remaining constructed area of four acres undisturbed in view of the Civil Court decree subject to further orders passed in this petition.
4. Successive orders have been passed by this Court thereafter, in furtherance of the aforesaid order. It may be useful to reproduce the order dated 30.1.2009 where the 4 Writ Petition No.6145/2002 Writ Petition No.15960/2012 Division Bench reiterated the fact that the site in question will have to be preserved and protected from encroachments and must be developed and maintained by the Authorities. The said order reads thus:
"We have heard Mr. A.P. Shroti, learned counsel for the petitioner, Mr. Jaideep Singh, learned Dy. G.A. for the respondents 1 & 3 and Mr. Ajay Mishra, learned Senior counsel for the respondent No.2. We have also heard Mr. D.K. Dixit, learned counsel for the intervenor.
This is a Public Interest Litigation filed by the petitioner alleging that Siddique Hasan Tank in Bhopal has been encroached by land mafias who are filling the tank and are thus depriving the public of an old and important gift of nature.
On 3.2.2005, the Court, after hearing learned counsel for the parties, directed the Municipal Corporation, Bhopal to take up the task of identifying the area which should be preserved as tank protected by constructing a Bund or fence. Pursuant to our order, the Municipal Corporation, Bhopal erected fence all around the tank but it is reported that the fence has now been removed by unidentified persons.
It thus appears that if the Siddique Hasan Tank comprising of about 8 acres of land (5.19 acres covered by water and 2.835 acres open land), is to be preserved and protected from encroachment, it has to be developed and maintained by some authority.
We are told by the Bar that lakes in Bhopal are being developed and maintained by the Lake Conservation Authority, Bhopal. We, therefore, direct that the Lake Conservation Authority, represented by the Chief Executive Director, E5, Paryavaran Parisa, Arera Colony, Bhopal will be impleaded as respondent No.4 in the present petition.
Issue notice to the newly impleaded respondent No.4 by registered post with AD, returnable within one month. The petitioner will take steps for issuance of notice by 2.2.2009 and the matter will be listed on 4.3.2009. In the meanwhile, the Municipal Corporation, Bhopal shall ensure that there is no further encroachment of the aforesaid tank."5 Writ Petition No.6145/2002 Writ Petition No.15960/2012
(emphasis supplied)
5. Once again, in the order dated 15.5.2009, the Court reiterated that no construction in the Tank area should be allowed without permission of the Municipal Corporation, Bhopal and which permission should be given strictly in accordance with the M.P. Municipal Corporation Act, if any. The said order reads thus:
"Mr. A.P. Shroti, learned counsel for th petitioner.
Mr. Samdarshi Tiwari, learned Government Advocate for respondent nos.1 and 3.
Mr. Ajay Mishra, learned Senior counsel with Mrs. Divyakirti Bohre, learned counsel for respondent no.2.
Mrs. Shobha Menon, learned Senior Counsel with Mr. Rahul Choubey, learned counsel for the intervenors.
Mr. D.K. Dixit, learned counsel for the intervenors.
This matter be listed for final hearing on 16.7.2009 for final hearing and disposal as first case.
In the meanwhile there will be no construction in the area called Siddique Hasan Tank in Bhopal without the permission of the Municipal corporation, Bhopal in accordance with the provisions of the Madhya Pradesh Municipal Corporation Act and permission from the appropriate authorities.
Reply in I.A. No.10934/2008 will be filed by the Bhopal Municipal Corporation by the next date."
(emphasis supplied)
6. The interim applications have been filed by the alleged unauthorized occupants and owners of the unauthorized structures standing on the site in question.
7. I.A. Nos. 12947/2010, 10934/2008, 307/2003 and 3104/2003 have been filed by the petitioner to issue direction to the Corporation to take follow up action in the 6 Writ Petition No.6145/2002 Writ Petition No.15960/2012 matter on the basis of assurance given to the Court and as has been recorded in the order dated 3.2.2005.
8. It appears that some proceeding is pending before the National Green Tribunal with regard to the same site wherein the issue raised is about violation of provisions of Environmental Laws. We are not expressing any opinion either way on the merits of the issues to be decided by the National Green Tribunal. That will have to be proceeded in accordance with law and this order may not be construed as having expressed any opinion on the said issues.
9. During the course of hearing, it transpired that besides the issue of encroachments and unauthorized structures on the Talab site, the stand taken by the Lake Development Authority which has been constituted to develop the area, is that the entire site is declared as heritage site and, therefore, there should be zero tolerance for allowing any structure on that site. It is not necessary for us to enlarge the scope of the present proceedings because the order which we propose to pass, in our view, will meet the ends of justice and speed up the process of clearance and development of the site by the appropriate Authority in accordance with law.
10. Moreover, we have no manner of doubt that the Heritage Committee constituted under the provisions of Archealogical Survey of India Act will have to examine the issues which may be relevant in the context of notifying the area as heritage site and take appropriate measures for clearance and preservation of that site in accordance with law. We are not expressing any view on those issues.
11. It has also come on record that with regard to four acres of land, as referred to in the order dated 3.2.2005, 7 Writ Petition No.6145/2002 Writ Petition No.15960/2012 some civil proceedings were pending and the Court had made it clear that the outcome of the said civil proceedings will be subject to the present petition. That only means that the issue regarding unauthorized structures constructed on the site will be the subject matter of the present proceedings.
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 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.
8 Writ Petition No.6145/2002 Writ Petition No.15960/201213. The question is how the Corporation can be pushed to complete this exercise expeditiously. In our considered opinion, for that, the Commissioner, Municipal Corporation, Bhopal should be personally made responsible to oversee the activity of conducting survey in respect of each structure standing on the site in question. That will have to be completed within some reasonable time and simultaneously, the unauthorised structures standing on the site will have to be removed by following due process.
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 9 Writ Petition No.6145/2002 Writ Petition No.15960/2012 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 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.
17. It was also argued on behalf of some of the occupants that the title of the land vests in them being private property and if the Lake Conservation Authority or the State Government or for that matter the Heritage Committee intends to take away that property or dispossess the petitioner for the development and preservation of the site must compensate them in accordance with the extant laws. We have no manner of doubt that the Authorities will consider this aspect before taking action of dispossessing the owners from the private land, if any.
10 Writ Petition No.6145/2002 Writ Petition No.15960/201218. 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.
19. We direct the Commissioner that all the applications/representations that may be received from the occupants/residents/owners of structures of Siddique Hasan Tank site shall be dealt with by him personally to ensure that speedy action is taken to fulfill the directions given by this Court
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.
22. The Corporation shall submit compliance report periodically to this Court, once in every three weeks from today, about the steps taken by it area wise.
23. We further make it clear that if the Corporation finds any difficulty or apprehends resistance from the locals 11 Writ Petition No.6145/2002 Writ Petition No.15960/2012 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 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.
26. Accordingly, I.A. Nos. 14488/2010, 12947/2010, 10934/2008, 307/2003, 3104/2003, 8385/11, 2322/10, 194/03, 1863-W/2003, 4530/06, 1106-w/03, 1101-W/03, 164/03, 192/03, 193/03, 1135-W/03, 1134-W/03, 314- W/03, 1748/03, 1280-W/04, 1281-W/04, 4155/06, 4153/06, 1633/09, 1635/09, 657/09, 6960/10, 7733/10, 7735/10, 1377-W/03, 2974/09 stand disposed of.
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 12 Writ Petition No.6145/2002 Writ Petition No.15960/2012 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.
List Writ Petition on 5th May, 2014 under caption 'directions'.
(A.M.Khanwilkar) (K.K. Trivedi)
Chief Justice Judge
HS