Madhya Pradesh High Court
Mukhtyar Singh Yadav vs State Of M.P. on 6 March, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 6442 of 2006
NEHRU GRIH NIRMAN SAHAKARI SAMITI
Versus
MUNICIPAL CORPORATION AND OTHERS
&
WRIT PETITION No. 798 of 2008
MUKHTYAR SINGH YADAV
Versus
STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sameer Kumar Shrivastava - learned counsel for the
petitioner in W.P. No.6442/2006 and for respondent No.4 in W.P.
No.798/2008.
Shri Vikas Singhal - learned counsel for petitioner in W.P.
No.798/2008 and for intervenor in W.P. No.6442/2006
Shri Sohit Mishra - Government Advocate for
respondent/State in both petitions.
Shri P.D. Bidua - learned counsel for Municipal Corporation
in both petitions.
Shri D.R.S. Baghel - learned counsel for respondents No.5
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 07-03-2025
10:50:41 AM
2
and 6 in W.P. 798/2008.
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Reserved on 13.02.2025
Delivered on 06.03.2025
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ORDER
This order shall govern the disposal of the aforesaid petitions as they involve similar issues and as such are being decided analogously by this common order.
2. W.P. No.6442/2006 has been filed by petitioner-Nehru Grih Nirman Sahakari Samiti against the illegal action of the Municipal Corporation, Gwalior whereby the respondent/Municipal Corporation is constructing boundary wall and protection wall with regard to Park in Block-B situated at Govindpuri Thatipur trespassing the land of Plot Nos. 10, 11 and 21 and W.P. No.798/2008 has been filed by the petitioner who is a resident of the colony against the illegal action of the respondent No.4- Nehru Grih Nirman Sahakari Samiti whereby respondent No.4 is trying to reduce the area of park by making illegal transfers in contravention of layout plan.
3. Facts are taken from Writ Petition No.6442 of 2006.
4. The petitioner is a housing society and is duly registered under the provisions of Section 9 of the M.P. Cooperative Societies Act, 1960. Shri Sudhir Kumar Shrivastava is a duly elected President of the Society. The layout plan of the land of the Society is duly sanctioned and approved by the District Town and Planning Officer, Gwalior. The layout plant of the Society's land was sanctioned accordingly, in the year 1970 showing the correct position of the land and park etc. In the layout plan of the Society, the park, which Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 07-03-2025 10:50:41 AM 3 has been reserved, has been earmarked as an open land marked as Park. The area of the park in Block B is in measurement 250 ft. x 120 ft. Near the park, there are three plots which are in number 10, 11 and 21. The Society has transferred the plots in favor of the purchasers by the registered sale-deeds. Thereafter, though there were civil litigations, but they had been dropped in favour of the purchasers holding that the plots No.10, 11 and 21 had been rightly transferred by the Society and the map, in which the correct position was shown, is a correct map and is in accordance with the situation. The Municipal Corporation, Gwalior was directed to allow the entry of the names of the purchasers. In pursuance thereof, the Municipal Corporation Gwalior entered the names of the purchasers vide order dated 29.01.1998. As such, the position is very much clear that the land of the plots No.10,11 and 21 is of the ownership of the purchasers. The Society had transferred the land to the purchasers. Thereafter, unauthorizedly and illegally, the respondent revised the layout plan in the year 1974 and a dispute arose in this regard as to whether the initial layout plant or the revised layout plan of the year 1974 will prevail. One member of the Society namely, Sharad Kumar Chaturvedi filed W.P. No.1562/96 in which this Court by order dated 03.11.1999 passed order holding that the layout plan vide Annexure P/1 is correct and will prevail over the revised layout plan in the year 1974. On 25.11.2006, the Mayor of the Municipal Corporation laid foundation for making boundary wall etc. of the park. As soon as the petitioner came to know about the action of the Mayor, the petitioner approached the authority by making oral objections in that regard. The authority told the petitioner that in regard of the construction, the tender has already been invited in the year 2004. The respondent Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 07-03-2025 10:50:41 AM 4 is not an authority to cover the land of the plot Nos 10,11 and 21. The area of the plots is different from the area of the Park, but the respondent is raising construction and covering the area of plots. The petitioner being aggrieved by the action on the part of respondents had filed an application on 03.03.2001 for correction of the revised layout in accordance with the order passed by this Court in W.P. No.1562 of 1996 but when no heed was paid on the application preferred by the petitioner the petitioner preferred W.P. No.173/2002 in vide order dated 12.08.2002 directions were issued to respondents/Municipal Corporation to consider the representation preferred by the petitioner in accordance with law and pass necessary order but to no avail. Hence, being aggrieved by the illegal and unauthorized action, the W.P. No.6442/2006 has been filed.
5. In W.P. No. 798/2008, the petitioner is a resident of Govindpuri Colony situated within the Municipal Limits. The petitioner purchased the plot from Nehru Grih Nirman Sahakari Samiti, which had developed the land of the colony. As per layout plan, there were 89 plots in the said colony with transferable rights. The grievance of the petitioner is that respondent No.4 in a fraudulent manner, had carved out certain portion of the subjected park reducing thereby the area of the park. The respondent No.4 executed registered sale-deeds of plot Nos. 10,11 and 21 in favour of respondents No.5 and 6 therein in respect of portion of the park so reduced. Hence, by filing W.P. No.798/2008, the petitioner is seeking relief of protection, maintenance and preservation of the subjected part as per the initial layout plan under representation of which the plot was sold to the petitioner.
6. It is submitted by learned counsel for the petitioner in W.P. Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 07-03-2025 10:50:41 AM 5 No.6442/2006 that though the respondent/Municipal Corporation is empowered to make construction to protect the land of the Park in accordance with layout plan but it is not within the power and jurisdiction of Municipal Corporation to cover the land of plots No.10,11,21. The land of the park is different from the land of the plots. Thus, the action of the respondent is arbitrary, malafide and unconstitutional.
7. It is further submitted that the layout plant is duly sanctioned and approved by the concerning authority. The open park land has already been reserved. The respondent can protect and make construction over the land of the park. The respondent is not an authority to invade the right of the property of the Society as well as the purchasers. With the aforesaid submissions, it is prayed that respondent-Municipal Corporation be directed not to cover any area of the plot Nos. 10,11 and 21 and to act in accordance with the layout plan (Annexure P/1) and not in accordance with the revised layout plan of the year 1974.
8. Learned counsel for the petitioner in W.P. No.798 of 2008 further submits that the area of subjected park as per the sanctioned layout plan dated 10.12.1970 was 40800 sq ft. Various sale-deeds were executed in favour of different persons of the colony representing the land of the subjected part as reserved for the purposes of park for public use. The colony was handed over to the Municipal Corporation, Gwalior when the colony roads were prepared by bitumen road and the land left for colony roads, park etc. vested in the Municipal Corporation, Gwalior for the purposes of management. Thus, the respondent No.4 and the purchasers (respondents No.5 and 6) can not be legally permitted to reduce the Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 07-03-2025 10:50:41 AM 6 area of subjected park and make construction the part of it.
9. It is further submitted that it is a trite law that area of park cannot be reduced or converted into residential use and the land of the park cannot be utilized for any other purposes as has been held by the Hon'ble Apex Court in catena of judgments. Further the land reserved for public park as per sanctioned layout plan was and is meant for public use only and the reservation of this land for public park was and is also necessary to maintain the ecological and environmental balances and the same cannot be allowed to be disturbed under the pretext of revision of layout plan, if made by the Town and Country Planning Department or the Municipal Corporation.
10. It is further submitted that the provisions of the Nagar Tatha Gram Nivesh Adhiniyam do not empower the authority to revise the layout plant on which basis various sale deeds were executed by the housing society. Though it is true that the provisions do not prohibit the authorities from revising the plan, however when the housing society has executed registered sale deeds of different plots in the light of the layout plant and has represented certain land as reserved for park, left over open space etc., a very valuable right had accrued in favour of the vendees on the strength of which they are entitled to prohibit/restrain the housing society as well as Town and Country Planning Department from making any deviation in the layout plan and also from using such reserved land for any purpose which is not mentioned in the layout plan.
11. It is further submitted that the right of management is vested in the Municipal Gwalior in respect of the subjected park left over open space etc. The respondent No.4 has no right in law to Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 07-03-2025 10:50:41 AM 7 reduce such reserved land available to its purchasers and to make further the excluded land available to the respondents No.5 and 6 for making construction on it.
12. It is further submitted that the respondents have acted with a mala fide intention and ulterior motive by reserving certain land of park by way of reducing the area of the public park. In this manner, the land reserved for the beneficial use of the local inhabitants is taken out for contrary personal purposes which is not permissible in law.
13. It is further submitted that the respondent No. 2 & 3 by their action/inaction are trying to reduce the area from the public park under the garb of their powers in a colourable exercise. They are hand in gloves with the respondents No. 4 to 6 and in such exercise of powers they are trying to make the reserved land available to the respondent for sale by reducing the size of the park and/or by the purpose of the park and left over open space This is with an oblique motive with extraneous consideration and the same cannot be legally permitted. With the aforesaid submissions, it is prayed that respondents may be directed not to reduce the area of the subject park as shown in Annexure P/1 and P/3 and further not to change the purpose of public park.
14. On the other hand, learned counsel for the Municipal Corporation submits that the layout was sanctioned and the area of park has been reduced by creating the plot No.10, 11, 21 and 22. It is further submitted that these plot numbers have been cancelled vide order dated 21.4.73 in case no. 127/71 x 3/3 and the same has not been challenged and the layout had attained finality. It is submitted that the area of the park is reserved with the dimension 340 x 120 Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 07-03-2025 10:50:41 AM 8 and the same is in existence till date and no construction can be permitted on the area of park.
15. lt is further submitted that the petitioner society has no legal right to reduce the area of the park earmarked in the layout plan. It is specifically denied that the plots no. 10, 11 and 21 have already not been cancelled because these plots are the part of the park.
16. Learned counsel for the respondent No.5 and 6 in W.P. No.798 of 2008 has submitted that in layout map dated 10.12.1970 issued by Town and Country Planning which was approved in the year 1970 total area 30,000 sq. ft. has been described. The Civil Court had rightly set aside the order of cancellation of mutation passed by Municipal Corporation on the basis of layout map dated 10.12.1970 which is approved layout and the same was found to be correct by the Civil Court.
17. It is further submitted that the map annexed with the sale deeds being site plan therefore the same cannot be deemed as correct measurement and the same are contrary to approved layout plan. Layout plan dated 10.11.1970 is not the approved layout plan as such the dimension and area as worked out on the basis of Layout plan dated 10.11.1970 cannot be held to be correct.
18. It is further submitted that it is incorrect to say that respondent No. 4 had carved out any portion of the park reducing thereby the area of the park. It is also incorrect to say that plots No 10, 11 and 21 has been given by reducing the area of the park. The plot No. 10, 11 and 21 are in accordance with the approved layout plan and were already in existence on the spot.
19. It is further submitted that layout plan dated 10.11.1970 is Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 07-03-2025 10:50:41 AM 9 not the layout plan approved by the Town and Country Planning. It is manipulated map bearing several irregularities. The total area of the park is 250'x120' sq. ft. The area of the park has not been reduced. The layout plan dated 10.12.1970 is the correct approved layout plan. The same was sanctioned in the year 1970 on the standard prevailing for the time being. Hence, it is prayed that W.P. No.798 of 2008 be dismissed.
20. Heard counsel for the parties and perused the record.
21. In the present case, the entire controversy hinges upon two disputed maps of the colony reflecting the land belonging to park and plots. The Municipal Corporation vide letter dated 21.04.1973 on the basis of layout map dated 10.11.1970 had cancelled plots No. 10,11,21,22 on the ground that the said plots were falling in the road work. Thereafter another layout map dated 10.12.1970 was approved by the Town and Country Planning Department. The entire controversy revolves around the layout map dated 10.11.1970 on the basis of which the petitioner in W.P. No. 798 of 2008 has claimed that the land earmarked as Park has been sold by the Society as plot which could not be done by the Society as in the layout map dated 10.11.1970, the land belonged to park and the alleged layout plan later sanctioned on 10.12.1970.
22. On 16.10.2024, this Court had directed the Joint Director, Town and Country Planning Department to clear the position on affidavit as to which of the maps was actually sanctioned either the map dated 10.11.1970 or map dated 10.12.1970 on or before the next date of hearing.
23. Thereafter on 21.01.2025, in compliance of order of this Court dated 16.10.2024, an affidavit had been submitted by Joint Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 07-03-2025 10:50:41 AM 10 Director, Town and Country Planning Department wherein it was stated that the map dated 10.12.1970 has been sanctioned and it is the original map.
24. On the said date, a dispute was raised by the other respondents that the map dated 10.12.1970 has been provided to them which bears different dimensions of the disputed area, therefore, without verifying the original map, it would not be possible to end the controversy.
25. In light of the aforesaid fact, this Court directed learned Panel Lawyer for the State to place before this Court the original record which contained the said map and called OIC of the matter to explain as to which of the map placed before this Court by either of the parties is the original map.
26. On 13.02.2025, Shri Sohit Mishra - learned Government Advocate alongwith Shri Manish Dhankar- SDM, Mungawali was present before this Court and after perusing the original record, it was informed this Court that the layout map dated 10.12.1970 is genuine and any other maps produced before this Court were proposed maps.
27. On the basis of revelation made by learned counsel for the State, this Court deems it expedient to hold that the layout map dated 10.12.1970 is genuine and would prevail and if any permission had been sought on the basis of map dated 10.11.1970, the same is inconsequential. If the respondents intend to raise any dispute with the regard to the approval of layout map dated 10.12.1970, the same would fall into the realm of disputed question of facts which cannot be gone into the writ jurisdiction and the proper remedy for the same would be civil suit.
Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 07-03-2025 10:50:41 AM 1128. In view of above, W.P. No.6442 of 2006 filed by the Society is hereby allowed and W.P. No. 798 of 2008 is dismissed.
(MILIND RAMESH PHADKE)
ojha JUDGE
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 07-03-2025
10:50:41 AM