Madhya Pradesh High Court
Smt. Padma Bansal vs Municipal Corporation Gwalior on 21 August, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2024:MPHC-GWL:16209
1 WP-1162-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 21st OF AUGUST, 2024
WRIT PETITION No. 1162 of 2023
SMT. PADMA BANSAL
Versus
MUNICIPAL CORPORATION GWALIOR AND OTHERS
Appearance:
Shri Arvind Dudawat, learned Senior Advocate alongwith Shri Arun
Dudawat, learned counsel for the petitioner.
Shri Deepak Khot, learned counsel for the respondent
No.1/Corporation.
Shri Shivam Kumar Kurchaniya, learned counsel for the respondent
No.2.
ORDER
The present petition under Article 226 of the Constitution of India is filed seeking following reliefs:-
(i) Issuing a writ of certiorari or any other suitable writ or order or direction, thereby quashing the impugned order dated- 29.12.2022 (Annexure-P/2) passed by respondent no. 2 with further direction to the respondents to extend the period for completion of construction work for further period of three years.
(ii) Passing any other Order or Direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(iii) Costs of the petition may also be awarded to the petitioner.
2. Short facts of the case are that the petitioner is owner of the Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/19/2024 10:37:05 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:16209 2 WP-1162-2023 property comprising of plots no.1125 to 1130 and 1134 to 1139 which is a part of land bearing survey no, 100/2, situated in Village Thatipur, Tahsil & District Gwalior Since petitioner decided to develop the said land by erecting/constructing building, therefore, after obtaining all required permissions, no-objection certificates (NOC) from concerned department/ authorities, applied for grant of permission to construct building and as directed, deposited requisite fees of Rs. 18,13,492/- (Rs.Eighteen lacs thirteen thousand four hundred ninety two) with respondent No.2. On 10.06.2015 respondent No.2 after completing all formalities granted permission vide permission No. 155-B dated 10.06.2015 with a condition that construction work should be get completed within a period of 3 years, as mandated in Section 293 of the Municipal Corporation Act, which empowers the respondent no.2 to fix the period of validity of permission/sanction for the construction of building. In addition to the development charges paid earlier a further sum of Rs.03 lacs was also deposit by the petitioner towards various other fees.
3. After receiving the building permission, the petitioner after making necessary arrangement of material as well as labours, commenced the construction work, thereafter due to acute shortage of water in the Gwalior City, the then Collector and Commissioner Municipal Corporation banned all construction work in the city, due to which petitioner was compelled to stop the construction work. As and when thereafter water became available, the petitioner with a view to complete the construction work on 28.05.2018 submitted an application for extension of period fixed for completion of Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/19/2024 10:37:05 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:16209 3 WP-1162-2023 construction work. The then authorities kept the said application pending for a long and it was only vide letter dated 01.10.2018 that the petitioner was informed about the extension of the period for raising construction from 10.06.2018 to 09.06.2019. Since the effective extended period was only for few months in which completion for construction work was not possible, the petitioner after arranging for the labour and other required material restarted the construction work and again on 04.06.2019 submitted an application for extension of the period of construction, which was also allowed and the period was extended from 10.06.2018 to 09.06.2019.
4. Due to outbreak of Covid-19 pandemic all the activities in the country stood stand still from the month of March 2020, due to complete Lock down and due to Lock down being extended from time to time the construction work could not be completed by the petitioner and in wake of unprecedented circumstances the Apex Court had exempted the period of Covid-19 Pandemic from computation of the period of limitation and since the construction work could not be completed by the petitioner which was beyond her control, therefore, she again submitted an application on 24.06.2021 for extension of period fixed for completion of construction, however, the respondents kept the said application pending without there being any valid reason, therefore, petitioner was constraint to file W.P. No. 12902/2021 before this Court and after appearing in the said writ petition the respondents on 06.08.2021 rejected the application on the ground that as per Rule 23(1)(2) of the M.P. Bhumi Vikas Rules, period of building permission was for five years which had expired on 09.06.2020, therefore, no further Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/19/2024 10:37:05 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:16209 4 WP-1162-2023 extension can be granted.
5. Thereafter, the respondents/corporate filed its return and additional return opposing the petition and had taken a specific stand that in view of rule 23(1)(2) of the Rules period of building permission cannot be extended. The coordinate Bench of this Court while hearing the said writ petition vide order dated 27.07.2022 allowed the said petition and while setting aside the order of rejection of the building permission dated 06.08.2021 directed the respondent/corporation to reconsider the application filed by the petitioner for extension of building permission in the light of Rule 23(3) of the Rules of 2012. In pursuance to the aforesaid directions the application of the petitioner was reconsidered but vide order dated 27.12.2022 the application was rejected holding that since the provisions of Rule 23(3) of Bhumi Vikas Rules are not applicable in the present matter, therefore, no extension can be granted. Aggrieved by the aforesaid, the present petition has been filed.
6. Shri Arvind Dudawat, learned Senior Advocate alongwith Shri Arun Dudawat, learned counsel for the petitioner while criticizing the order dated 27.12.2022 submitted that in the earlier round of litigation this Court has clearly directed the respondents to consider the case of the petitioner in the light of sub-rule (3) of Rule 23 of Bhumi Vikas Rules 2012 but instead of considering the application of the petitioner in the light of aforesaid Rules, it has been held by the respondents that the said rule itself is not applicable in the case of the petitioner since the permission granted to the petitioner was under Rule 27 of the Bhumi Vikas Rules 1984.
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7. It was further argued that as per the relevant law, if the construction work had commenced during the validity of building permission, then permission would not lapse, in spite of it the respondents have passed the impugned order without considering the effect of provisions contained in sub-rule (3) of Rules 23 of the Rules of 2012, therefore, the said order is per se illegal and deserves to be quashed.
8. To bolster his submissions reliance was placed by the learned Senior Counsel in the matter of Ashish Kumar Vs. State of M.P. reported as (2015) 2 MPLJ 540 and it was held that though the application for grant of permission was moved prior to coming into force of the Bhumi Vikas Rules, 2012 but the same was considered only after coming in existence of said rules and, therefore, as per repeals and saving clause provided under Rule 105 of the Rules of 2012, the said application was required to be disposed of in accordance with provisions of the of Rules 2012, thus, in fact was passed under the new Bhumi Vikas Rules, 2012, thus, on this count the impugned order suffers from perversity and is liable to be quashed.
9. On the other hand, Shri Deepak Khot, learned counsel for the respondent No.1/Corporation submitted that the respondent/Corporation in the light of directions of this Court in the earlier round had sought clarification and guidance from the Town and Country Planning Department, which was received vide letter dated 16.12.2022, from where it was observed that Rule 23(3) of the Rules of 2012 was applicable in the case of permission granted under Section 30 of Nagar Tatha Gram Nivesh Adhiniyam and Rule 23 provides the duration of sanction and 23 sub-rule (3) Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/19/2024 10:37:05 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:16209 6 WP-1162-2023 provides that if the execution of the project begins during validity of the permission granted under Section 30 of the Act, the permission shall not be deemed to be lapsed thereafter at any time and no re-validation would be required.
10. It was further submitted that Section 30 of the Nagar Tatha Gram Nivesh Adhiniyam provides grant or refusal of permission on receipt of application under Section 29 by the Director, Town and Country Planning Department and the present petitioner had applied the permission to the Municipal Corporation under Section 293-295/300 of Municipal corporation Act, 1956, therefore, the said application would be governed by the provisions of Municipal Corporation Act and as per Section 300 of Municipal Corporation Act, 1956, a period of only two years is provided for completion of the construction work and as such the extension which has been granted by the Municipal Corporation also was not required to be granted to the petitioner, however such extension was granted applying the Rules 2012, though not applicable in the case and, therefore, the competent authority after going through the provisions and taking guidance from the Town and Country Planning Department and obtaining legal opinion from the experts has found that the case of the petitioner does not fall within the ambit of Rule 23 (3) of the Rule of 2012, therefore, has rightly rejected the application and the said order is within four corners of the Rules of 2012,thus, does not required any interference of this Court under Article 226 of the Constitution. It was, thus, submitted that the present petition being devoid of any merits be dismissed.
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11. Heard the counsel for the parties and perused the record.
12. The ground on which the application for extension of building construction was refused is that since provisions of Rule 23(3) of Bhumi Vikas Rules, 2012 are not applicable to the provisions of M.P. Municipal Corporation Act, 1956 and on the permission granted under Rule 27 of the Bhumi Vikas Rules, 2012, therefore, the application of the petitioner could not be considered under the aforesaid rules as directed by this Court appears to be wholly perverse and without any due application of mind.
13. With addition of Section 293-A of the Municipal Corporation 1956, the provisions of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 and the rules made thereunder in respect of control of development and use of land was held to apply mutatis mutandis for the purpose of control of development and use of land under the Municipal Corporation Act and this amendment was inserted by M.P. Act, 2011 of 2015 w.e.f. 20.04.2015. Thus, the very contention of the respondents/Corporation that the provisions of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 and the rules made thereunder i.e. Bhumi Vikas Rules would not be applicable over the provisions of Municipal Corporation Act,1956 is wholly perverse and illegal. For reference Section 293 'A' of the Corporation Act is reproduced herein below:-
293-A. Provisions of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (No.23 of 1973) to apply in respect of control of development and use of land- Save as otherwise provided in this Act, the provisions of Section 24 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (No.23 of 1973) and the rules made thereunder in respect of control of development and use of land shall mutatis Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/19/2024 10:37:05 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:16209 8 WP-1162-2023 mutandis apply for the purpose of control of development and use of land under this Act.
14. In the present case, it is an admitted fact that the petitioner had applied for grant of building permission in the year 2012 prior to coming into force of Bhumi Vikas Rules, 2012 but the same was decided by the building officer, Municipal Corporation on 10.06.2015 and Rule 105 of Bhumi Vikas Rules which deals with repeals and savings provides that any application submitted under the repeal rules i.e. 1984 Rules, pending at the commencement of these rules shall be continued and disposed of in accordance with the provisions of these rules i.e. M.P. Bhumi Vikas Rules, 2012, thus, in the light of provisions of Section 293'A', the Municipal Corporation is bound to adhere to the provisions of Bhumi Vikas Rules, 2012 and was competent to issue building permission under Section 27 of the Bhumi Vikas Rules, 2012, which was accorded vide Annexure P/3.
15. As per sub-rule (5) of Rule 2 of Bhumi Vikas Rules, 2012, the authorities having jurisdiction in relation to development and building activities would mean:-
"(a) the Director of Town & Country Planning or any other officer authorized by him in this behalf for granting permission for development of land in Planning areas and also in such non planning areas where these rules are made applicable by notification. The development of land includes,-
(i) making material change in land including its sub division and change in its use in terms of occupancy;
(ii) construction of any type of building.
(b) the Municipal Corporation or Municipal Council or Nagar Parishad, as the case may be, or any officer authorized by or under the relevant Municipal Law or the Gram Panchayat or such other authority or officer so authorized under the Madhya Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/19/2024 10:37:05 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:16209 9 WP-1162-2023 Pradesh Panchayati Raj Evam Gram Swaraj Adhiniyam, 1993(N.1 of 1994) for granting permission for construction/alteration, demolition of building in planning area and non-planning area falling within their respective jurisdictions.
Explanation- (1) The expressions "Municipal Corporation" or Municipal Council" or Nagar Parishad whenever the context so requires shall include the Administrator referred under Section 423 of the Madhya Pradesh Municipal Corporation Act, 1956 (No.23 of 1956) or "the person or committee of persons" appointed by the State Government under Section 328 or Section 337 of the Madhya Pradesh Municipalities Act, 1961(No. 37 of 1961);
(2) The expressions "Gram Panchayat" whenever the context so requires shall include the "the person or committee of persons" appointed by the State Government or the prescribed authority under clause (b) of sub-section (3) of Section 87 of The Madhya Pradesh Panchayati Raj Evam Gram Swaraj Adhiniyam, 1993 (N.1 of 1994);
16. Further, building activities is defined under sub-rule (8) of Rule 2, which means:-
(a) erection, re-erection, making material alteration and demolition of any building;
(b) development of land as a composite building scheme and corporate development;
(c) development and redevelopment of any tract of land which includes division and sub-division into plots or various land uses within a colony;
Note-(1) In all the above three cases, the development permission shall be granted or refused, as the case may be, by the Director of Town and Country Planning; (2) The building permission shall be granted or refused by Parishad or Gram Panchayat as the case may be, within their respective jurisdictions;
17. The aforesaid provisions imply that the competent authority of the respondent/Municipal Corporation shall under the obligation of Rules of 2012 as well as the provisions of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 would be the authority having jurisdiction in relation to Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/19/2024 10:37:05 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:16209 10 WP-1162-2023 development and building activities and it was admittedly the building officer of the Corporation who had given the building permission under the Rule 27 of the Rules, 2012 and under Section 30 (1)(b) of Nagar Tatha Gram Nivesh Adhiniyam. This fact is also evident from the perusal of the permission, which has been granted by the Town and Country Planning Department vide Annexure R/2, as the same was granted under Section 30(1)(b) of Nagar Tatha Gram Nivesh Adhiniyam and Rule 27(1) of Bhumi Vikas Rules, 2012, thus, when the initial permission granted to the petitioner was under Section 30(1)(b) read with Rule 27(1), then the provisions of sub-rule 3 of Rule 23 of the Bhumi Vikas Rules, 2012 would definitely be attracted. For reference Rule 23(3) reads as under:-
23. Duration of Sanction- (1) In case of development permission under Section 30 of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 the sanction once accorded shall remain valid up to three years.
(2) The permission shall be got revalidated it expires. Such revalidation may be permitted for two consecutive terms of one year each, after which proposals shall have to be submitted afresh. In case the application for revalidation is submitted after the expiry of the said period of three years, the Authority shall charge a permission fee equal to the fee prescribed under clause (a) of sub-rule (3) of rule 21 before revalidating the same. However no fee shall be charged if the application for revalidation is received before the expiry of its validity. The limitation of five years shall not be relaxed.
(3) In case execution of the project begins during the validity of the permission granted under Section 30 of the Act, the permission shall not be deemed to lapse thereafter at any time and no re-validation shall be required.
18. Thus, this Court finds that the Coordinate Bench of this Court was right in directing the respondents/Corporation to consider the application of Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/19/2024 10:37:05 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:16209 11 WP-1162-2023 the petitioner under the provisions of rule 23(3) of Bhumi Vikas Adhiniyam but instead of considering the said application under the aforesaid provision it has been rejected on a misconceived notion that the provisions of sub-rule (3) of Rule 23 of Bhumi Vikas Adhiniyam is not applicable to the case of the petitioner.
19. Left with no choice, this Court while quashing the said order remits the matter back to the Corporation to reconsider the application as per rule 23(3) of Bhumi Vikas Rules, 2012 and pass fresh order within a period of two weeks from the date of receipt of certified copy of this order.
20. Certified copy as per rules.
(MILIND RAMESH PHADKE) JUDGE neetu Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/19/2024 10:37:05 AM