Madhya Pradesh High Court
Pradeep Kumar Choudhary vs The State Of Madhya Pradesh on 3 March, 2022
Author: Sheel Nagu
Bench: Sheel Nagu
1 W.P.No.7890-2021
IN THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH AT
JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE PURUSHAINDRA KUMAR KAURAV
WRIT PETITION No.7890 OF 2021
Between:-
1. PRADEEP KUMAR CHOUDHARY S/O
HARISHANKAR CHOUDHARY, AGED ABOUT 45
YEARS, OCCUPATION: BUSINESS R/O WARD NO.
9, TALAB MOHALLA DISTT. RAISEN (MADHYA
PRADESH)
2. GAJENDRA SINGH GAUR S/O D.P. THAKUR, AGED
ABOUT 45 YEARS, OCCUPATION: BUSINESS R/o
PATEL NAGAR WARD NO. 11, DISTT. RAISEN
(MADHYA PRADESH)
3. RAJKUMAR BAGHEL S/O SHRI HARISINGH
BAGHEL, AGED ABOUT 50 YEARS, OCCUPATION:
BUSINESS VILLAGE DABAR, DISTT. RAISEN
(MADHYA PRADESH)
4. AMIT CHATURVEDI S/O SHRI NARESH
CHATURVEDI, AGED ABOUT 42 YEARS,
OCCUPATION: BUSINESS WARD NO. 11, DISTT.
RAISEN (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI SHUBHAM RAI WITH SHRI AMAN GUPTA,
ADVOCATES)
AND
1. THE STATE OF MADHYA PRADESH THR
PRINCIPAL SECRETARY URBAN
ADMINISTRATION AND DEVELOPMENT
DEPARTMENT VALLABH BHAWAN BHOPAL (M.P.)
2. THE MUNICIPAL COUNCIL RAISEN THROUGH
THE CHIEF MUNICIPAL OFFICER MUNICIPAL
COUNCIL RAISEN (MADHYA PRADESH)
3. THE COLLECTOR DISTRICT RAISEN (MADHYA
PRADESH).
2 W.P.No.7890-2021
4. THE DEPUTY DIRECTOR VETERINARY
SERVICES DISTT. RAISEN (MADHYA PRADESH)
....RESPONDENTS
(BY SHRI A. RAJESHWAR RAO, GOVERNMENT ADVOCATE FOR
RESPONDENT Nos.1, 3 & 4. SHRI RAMESH KUMAR TIWARI,
ADVOCATE FOR RESPONDENT No.2)
-------------------------------------------------------------------------------------------
Reserved on : 14.12.2021
Passed on : 03.03.2022
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Per : Sheel Nagu, J.:
ORDER
This petition filed u/Art. 226 of the Constitution by four shopkeepers who hold lease hold right in respect of the shops allotted to them in 37 Shop Marketing Complex called "Kamdhenu Market" situated on the Veterinary Hospital side of the Tri-Junction at Raisen, prays for following relief:
(i) To issue an appropriate writ thereby directing the respondents to comply and follow the mandate issued by the Hon'ble Supreme Court in S.L.P. No.8519 of 2006 vide order dated 18.01.2013 whereby the Hon'ble Supreme Court has casted a complete prohibition from installation of statue or structure on any public road or public utility place.
(ii) To issue an appropriate writ thereby restraining the respondents on installing the statue of Rani Avanti Bai Lodhi on the shopping complex constructed by the respondent No.4 in the name of Kamdhenu Market.
(iii) To issue an appropriate writ thereby restraining the respondents from encroaching upon the sanctioned parking space of the market for construction of the statue of Rani Avanti Bai Lodhi.
(iv) To issue an appropriate writ thereby quashing and setting aside the resolution passed by the President in Council Municipal Council 3 W.P.No.7890-2021 Raisen whereby it has been resolved to install a statue of Rani Avanti Bai Lodhi.
(v) To issue an appropriate writ thereby quashing and setting aside all permissions and NOC's issued for installing the statue.
(vi) To grant any other relief as this court deems fit and proper in the interest of justice.
2. The grievance of petitioners as projected by learned counsel Shri Shubham Rai is that right in front of their shops at the place reserved for parking and public convenience, adjacent to Sagar-Bhopal Tri-junction, respondents are taking steps for erection of a statue of Virangana Rani Avanti Bai Lodhi which shall not only cause inconvenience to the general public in availing the open area reserved for public convenience but shall also adversely affect the business prospects of petitioners.
3. Pertinently, this Court while taking cognizance of the matter on 06.04.2021 directed for maintenance of status quo with regard to the land/parking slots in question after being persuaded by the interim order passed by the Apex Court in the case of Union of India Vs. State of Gujarat and others, SLP (Civil) No.8519/2006 dated 18.01.2013 vide Annexure-P/8 where the Apex Court prohibited installation of any statue or construction of any structure on public roads, pavements, sideways and other public utility places by so directing to all the State Governments and Union Territories.
4. The Apex Court in SLP (Civil) No.8519/2006 (Union of India Vs. State of Gujarat and others) vide order dated 18.01.2013 has held as under:
"4. Until further orders, we direct that the status quo, as obtaining today, shall be maintained in all respects by all concerned with regard to the Triangle Island where statue of late Shri N. Sundaran Nadar has been permitted to be sanctioned. We further direct that henceforth, State Government shall not grant any permission for installation of any statue or construction of any structure in public roads, pavements, sideways and other public utility places. Obviously, this order shall not apply to installation of high mast lights, street lights or construction relating to electrification, traffic, toll or for development and 4 W.P.No.7890-2021 beautification of the streets, highways, roads etc. and relating to public utility and facilities.
5. The above order shall also apply to all other states and union territories. The concerned Chief Secretary/Administrator shall ensure compliance of the above order."
5. The aforesaid interim order dated 18.01.2013 passed by the Apex Court was continued which is evident from the subsequent interim order passed on 31.01.2018 in SLP (Civil) No.8519/2006, the extract of which is reproduced hereinbelow:
"UPON hearing the counsel the Court made the following ORDER SLP (C) NOS. 8519/2006, W.P.(C)NO. 314/2010, CONTEMPT PETITION(C)NO. 397/2013 IN SLP(C)NO.8519/2006, CONTEMPT PETITION(C)D.34470/2013 IN SLP(C)NO.8519/2006, CONTEMPT PETITION(C)NO.549/2014 in SLP(C)N0.8519/2006, CONTEMPT PETITION DY. NO.40673/2017:
Repeated orders have been passed by this Court with respect to the removal of illegal religious structures which have come up by way of encroachments on public land. Now these matters are pending.
Vide orders dated 7.12.2009, the following directions have been issued:
"This Court on 29th September, 2009, after taking into consideration the letter dated 19th September, 2009, sent by the Union Home Secretary to the learned Solicitor General of India, we passed the following order:
"We have heard the learned counsel for the parties. Looking to the far reaching implications and consequences of the orders of this Court, on the oral request of the learned Solicitor General of India, we deem it appropriate to implead all the States and the Union Territories as respondents to this petition. The Registry is directed to issue notices to all the States and the Union Territories within three days. The Union of India is directed to supply the 5 W.P.No.7890-2021 entire set of papers to all the Standing Counsel appearing for the State Governments and the Union Territories.
The States and the Union Territories may file replies within four weeks and the Union of India is granted liberty to file rejoinder within two weeks thereafter.
As an interim measure, we direct that henceforth no unauthorized construction shall be carried out or permitted in the name of Temple, Church, Mosque or Gurudwara etc. on public streets, public parks or other public places etc. In respect of the unauthorized construction of religious nature which has already taken place, the State Governments and the Union Territories shall review the same on case to case basis and take appropriate steps as expeditiously as possible.
In order to ensure compliance of our directions, we direct all the District Collectors and Magistrates/Deputy Commissioners in charge of the Districts to ensure that there is total compliance of the order passed by us. They are directed to submit a report within four weeks to the concerned Chief Secretaries or the Administrators of the Union Territories who in turn will send a report to this Court within eight weeks from today.
List this matter for further directions on 7th December, 2009."
All the States and the Union Territories have been served. Despite service, most of the States and Union Territories have not filed affidavits as directed by this Court. In the interest of justice, we grant one more opportunity to the Chief Secretaries/Administrators of the respective States and Union Territories to file affidavits. Let the same be filed within six weeks, failing which the concerned Chief Secretaries and Administrators shall remain present in Court on the next date of hearing.
6 W.P.No.7890-2021In case the Chief Secretaries and the Administrators have not issued circulars to all the Collectors and the District Magistrates of the Districts, it shall be issued within two weeks from today.
The Chief Secretaries, in consultation with the respective Governments are directed to frame the policy in respect of existing unauthorised construction of religious nature, which had already taken place. This Court directed the respondents to review the same on case to case basis. Let the policies be formulated by all the States and the Union Territories within four weeks from today.
We are reiterating that the Chief Secretaries, the concerned District Magistrates and the Collectors/Deputy Commissioners incharge of the Districts must ensure total compliance of our order. Any breach in this respect shall be viewed seriously by this Court.
We direct the Chief Secretaries/ Administrators of all the States and Union Territories to circulate copies of the order dated 29th September, 2009 and this order to all the District Magistrates and Collectors/Deputy Commissioners, other public bodies and local bodies.
We direct the learned Standing counsel appearing for various States and the Union Territories to ensure that all copies of the affidavits are filed in this Court on or before 27th January, 2010 with an advance copy to the learned Solicitor General of India, who is requested to get all these affidavits tabulated and submit a report to this Court on or before 2nd February, 2010.
Place this petition for further directions on 4th February, 2010. Looking to the gravity of this matter, we direct that no order or direction inconsistent to our orders, shall be passed by any other Court in the country."
Thereafter, vide order dated 16.02.2010, the Apex Court issued following directions:
7 W.P.No.7890-2021In pursuance of the order of this Court dated 29th September, 2009, by which this Court directed that henceforth no unauthorized construction shall be carried out or permitted in the name of Temple, Church, Mosque or Gurudwara etc. on public streets, public parks or other public places, the affidavits of all the States and the Union Territories, except the State of Uttarakhand, have been filed. All the States and the Union Territories have taken necessary steps to ensure that no further unauthorized construction shall take place and Court's directions are seriously and meticulously complied with.
The other part of the directions issued on 29th September, 2009, were that in respect of unauthorized construction of religious nature which has already taken place on public streets, public parks or other public places, the State Governments and the Union Territories were directed to review the same on case to case basis and take appropriate steps as expeditiously as possible. We do not find comprehensive and satisfactory affidavits as far as this direction of the order is concerned. Therefore, it has become imperative to direct all the States and the Union Territories to formulate comprehensive policy regarding the removal/ relocation/ regularisation of the unauthorized construction within six weeks' from today. The policy should clearly indicate within what period the States and the Union Territories are going to fully comply with its policy to remove/relocate/regularise the unauthorized construction.
We also direct all the States and the Union Territories to identify unauthorized construction of religious nature on public streets, public parks and public places within six weeks' from today. We direct the Chief Secretary of the State of Uttarakhand to file an affidavit within two weeks from today. In case the affidavit is not filed, the Chief Secretary shall remain present in Court on the next date of hearing.
We also direct all the Chief Secretaries of the States and the Administrators of the Union Territories to file further comprehensive affidavits within six weeks' from today.8 W.P.No.7890-2021
The special leave petition is adjourned to 6th April, 2010."
To ensure the implementation of directions issued by this Court, consensus has been arrived at Bar and in our opinion, rightly, that the implementation of the order should be supervised by the concerned High Courts. We, consequently, remit the above matters to the respective High Courts for ensuring implementation of the orders in effective manner.
The concerned records be transmitted to the respective High Courts. The interim orders wherever passed, shall continue, until the matters are considered by the High Court. In case any clarification is required, it would be open to the parties to approach this Court.
The High Court will have the jurisdiction to proceed in the Contempt of any of the orders passed by this Court.
Pending applications shall also be transmitted to the High Court."
[Emphasis Supplied}
6. Perusal of Writ Petition No.18051/2018 (PIL) registered after receipt of record from the Apex Court reveals that the said PIL continues to be pending in this Court till date. Though the said Writ Petition No.18051/2018 (PIL) relates to religious constructions made on government/public land reserved for public use, but the interim restraint orders passed by the Apex Court in respect of statues also continue to hold good till date. Thus the interim restraint against erection of statues at spaces reserved for public utility, imposed by the Apex Court continues to bind all State Governments, instrumentalities of the State, local bodies etc.
7. Learned counsel for petitioners has drawn the attention of this Court to the photographs annexed at Page Nos.39 and 40 of the paper book to demonstrate that about eight to ten holes have been dug up for constructing the foundation, for erecting the statue, which occupies a large area of the open space reserved for parking and movement of the pedestrians in front of the aforesaid shopping complex. In all probability, no further construction must have taken place due to the interim order passed by this Court on 16.04.2021 which continues to subsist till date.9 W.P.No.7890-2021
8. Respondent No.2 i.e. Municipal Council Raisen has filed the reply inter alia revealing thus:
(i) None of the other shopkeepers except the four petitioners have protested against the erecting of the statue and, therefore, malice and ulterior motive of petitioners is evident.
(ii) Petitioners are attempting to take undue advantage of the order of the Apex Court passed in Union of India Vs. State of Gujarat (supra) dated 18.01.2013.
(iii) On 30.05.2019, the President-in-Council of the Municipal Council, Raisen unanimously resolved that for the sake of beautification of the said Tri-junction and keeping in mind the sentiments and suggestions of the Lodhi-Lodha Rajput Community District Raisen, the statue of Virangana Rani Avanti Bai Lodhi be installed.
(iv) Vide order dated 05.10.2020 (Annexure-R/3), the Traffic Police Raisen issued NOC that the erection of the statue would not cause any adverse effect to the flow of the traffic.
(v) By letter dated 08.10.2020, the Public Works Department, Raisen Division also issued NOC for the said purpose.
(vi) By letter dated 18.11.2020, M.P. Madhya Kshetra Vidyut Vitaran Co. Ltd. issued NOC for the said purpose.
(vii) By letter dated 19.12.2020, Dy. Director Veterinary Services, District Raisen further issued NOC in this regard.
9. Return of the Municipal Council vide Annexure-R/4 has made available the map of the area concerned which clearly reveals that the spot at which the erection of statue is proposed is reserved for parking/garden. The area to be occupied by the statue is about 8.6 mt. X 5.4 mt. in a rectangular shape. Moreso, the map further reveals that the extreme edge of the statue towards the Tri- junction is only 4.8 mt. away from the edge of proposed widening of the road. Thus, it is evident that a passage of about 14 to 15 mt. which was earlier 10 W.P.No.7890-2021 available for movement of pedestrians and for parking purposes is proposed to be restricted to only 4.8 mt.
10. After hearing learned counsel for the rival parties, this Court is of the considered view that once the Apex Court has restrained all the functionaries of the State and Union Territories from installing any statue or making construction of any kind on public roads, pavements, sideways and other public utility places, it is surprising to note that how and why and under what circumstances, the respondents have chosen to violate the restraint order of the ApexCourt with impunity, by issuing NOCs for erection of the statue in question. Despite petitioners having objected before Collector Raisen vide representation (Annexure-P/10) duly received in the Office of Collector Raisen on 17.03.2021, no remedial steps have been taken. In fact, the Municipal Council despite being in the wrong has left no stone unturned to oppose this writ petition tooth and nail.
11. It is further surprising to note that despite the cause raised herein not only being privy to petitioners but also involving public cause, the respondents are casting aspersions of malice and ulterior motive on the petitioners.
12. The places reserved for public amenities such as garden and parking area are meant only for such purposes and cannot be used for any other purpose. Establishment of a statue of a public figure may ostensibly appear to be a public cause as it may tend to serve the sentiments of a particular group of people or a particular community but when this cause is pitted against the larger public cause or right of the members of the public at large to enjoy every inch of the land reserved for public purpose, then the said cause of erecting a statue becomes dwarf and gets eclipsed by the larger public cause qua garden/parking area. The reason for this is obvious. Erecting of a statue may satisfy the sentiments of a particular community but making a particular area available for parking or for garden/park, serves the requirement of the entire society comprising of members of all caste, creed and communities. Moreso, erecting of a statue may led to a temporary satisfaction of sentiments but when the erection causes obstruction in the easy passage of pedestrians and other members of general public and safe movement of traffic, then the said erection of a statue becomes a nuisance. It is 11 W.P.No.7890-2021 trite law that in cases of conflict between personal right and public right, the former has to give way to the latter.
13. Before this Court concludes, it is pertinent to comment upon the responses and the attitude demonstrated by the respondents including the Municipal Council. Instead of coming out clean by taking a stand in line with the restraint order of the Apex Court, the respondent Counsel and so also other functionaries of the State have taken an adversarial stand in this petition. Since return has been filed only by respondent No.2, the Municipal Council Raisen, which took the unlawful initiative of resolving to erect the statue in question vide its resolution dated 30.05.2019 of it's President-in-Council, this Court deems it appropriate to impose exemplary cost on the Municipal Council Raisen for acting unlawfully with impunity, belying it's claim of being an instrumentality of the State under Art. 12 of the Constitution.
14. Consequently, the present petition is allowed with following directions:
(i) The respondents, by issuance of writ of prohibition, are restrained from erecting or causing to erect any statue in the open area in question in front of the shops at Kamdhenu Market Complex situated on the Veterinary Hospital side of the Tri-junction at Raisen, District Raisen (M.P.).
(ii) The respondent Municipal Council Raisen shall restore the parking/garden area in question to it's original shape by filling up the holes dug up and covering the same with paver blocks.
(iii) Cost of Rs.30,000/- is saddled upon respondent No.2 - Municipal Council Raisen for having acted in blatant violation of the order of Apex Court in Union of India Vs. State of Gujarat (supra), out of which, Rs.10,000/- shall be paid to petitioners herein in equal proportion through digital transfer in the bank accounts of petitioners, for having been compelled to file this avoidable piece of litigation, within a period of 30 days. The remaining cost of Rs.20,000/- shall be deposited with the High Court Legal Aid Committee, Jabalpur for wasting the precious and scarce time of 12 W.P.No.7890-2021 the Court in dealing with this avoidable piece of litigation, which could have been utilized for hearing and deciding more pressing matters.
(iv) On failure of deposit of cost within 30 days, Registry is directed to list this case under the caption of "Direction" as PUD for execution qua cost.
(SHEEL NAGU) (PURUSHAINDRA KUMAR KAURAV)
JUDGE JUDGE
Biswal
Digitally signed by SHIBA NARAYAN BISWAL
Date: 2022.03.05 11:18:57 +05'30'