Madhya Pradesh High Court
Nilofar Khan vs Municipal Corporation Ujjain on 2 November, 2017
Author: Virender Singh
Bench: Virender Singh
27
W.A.No.980/2017
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
D.B.:Hon'ble Shri P.K. Jaiswal
Hon'ble Shri Virender Singh, JJ.
Writ Appeal No.980/2017
NILOFER KHAN & ANOTHER
Versus
MUNICIPAL CORPORATION & OTHERS.
********
Shri A.K. Sethi, learned Senior counsel with Shri Sumeet
Samvatsar, learned counsel for the appellants.
Shri Manoj Munshi, learned counsel for the respondents.
********
ORDER
(Passed on this 2nd day of November, 2017) Per P.K. Jaiswal, J:-
By this intra-court appeal, the appellants - Nilofer Khan and Kalim Khan are challenging the order dated 12.10.2017 passed in W.P.No.4884/2017, by which the learned writ court upheld the notice dated 27.7.2017, issued by the Municipal Corporation, Indore and rejected the prayer for compounding the building permission in terms of the Madhya Pradesh Municipal (Compounding of Offence of Construction of Buildings, Fees and Conditions) Rules, 2016 (for short, hereinafter referred as "Rules of 2016") to building construction means President Hostel, Utsav Garden, located at Survey No.3688/1 and 3694 and Marriage Hall situated at survey No.3690.
2. Facts of the case are that by virtue of sale deed, which is at page no.63, the appellant No.2 is owner of 27 W.A.No.980/2017 0.136 Aare of survey no.3690 and 0.018 Aare of survey no.3691 (total 0.154 Aare) agriculture land situated at Hari Pathak road, Ujjain. Appellant No.1 - Smt. Nolifer Khan wife of appellant No.2 is owner of 0.152 Aare, survey no.3690/2 purchased by registered sale deed (sale deed page No.69) the total area 0.306 Aare.
3. For remaining area i.e., survey no.3694, 3665, 3666, 3667, 3690, 3698/1 and 3694/1, total area 6.677 hectares, they are claiming ownership by virtue of agreement dated 10.8.1996, executed by Hakeem-ud-din. This agreement was executed by Smt. Sarabai, Smt. Jubedabai, Smt. Shiriabai, Smt. Jenebabai, Haider Ali, Shabir, Tayab Ali, Smt. Betulbai, Amritbai, Khatitabai, daughters of Ibrahim. As per agreement 0.847 hectare area has been acquired for construction of road and 0.306 hectare has been purchased by the appellants vide registered sale deeds. On rest of the land one Wazir Khan was in possession and after his death party No.2 of the agreement were in possession. This agreement is dated 10.8.1996. In respect of rest of the land they are claiming ownership by placing reliance over Section 190 of the M.P. Land Revenue Code, 1959 (for short 'the M.P.L.R. Code') by submitting that they have been conferred the Bhoomi Swami right. They have made construction over the said land after getting sanction by the Joint Director, Town and Country Planning, Ujjain on 20.2.2014, but without the 27 W.A.No.980/2017 building permission from Municipal Corporation, Ujjain and thereafter, they applied for compounding under the Rules of 2016. The application for compounding has been rejected by the Municipal Corporation on 6.5.2017 vide Annexure P/8.
4. They have also applied under Section 115 of M.P.L.R. Code before the Tehsildar for correction and entries.
5. The Municipal Corporation has issued notice dated 6.2.2017 under Section 307 of Municipal Corporation Act in respect of land bearing survey no.3690/2 and 3690/3 (Area 2883.33 sq.mt) and they have been directed to appear on 13.2.2017, alongwith necessary documents and permission. In the notice, it has been alleged that they have constructed the entire hotel basement G+5 parking area, Marriage Hall illegally. The appellants submitted reply to the said notice to the effect that the Joint Director, Town and Country Planning has granted the sanction vide Order No.419, dated 20.02.2014 and they have already submitted the application for building permission along with fee of Rs.38,977/- on 01.09.2014, the Rule 27 and 28 of the M.P. Bhumi Vikas Rules, 2012 provides for deeming sanction, hence, there is no illegal construction. Thereafter, they filed W.P.No.2370/2017 in which vide order dated 10.04.2017, the stay was granted. The Writ Petition No.2370/2017 came up for hearing on 21.6.2017. On the date of hearing, learned counsel for the Municipal 27 W.A.No.980/2017 Corporation, Ujjain made a statement that notice dated 6.2.2017, has been withdrawn by the Corporation as the survey numbers have wrongly been mentioned in the said notice and sought liberty to issue fresh show cause notice. The learned writ court accepted the prayer of the Municipal Corporation and disposed of the writ petition by passing the following order :-
"Learned counsel for the Respondents submits that the present petition has been filed against the notice dated 06.02.2017. He submits that in this notice some discrepancy are found with respect to survey numbers. The petitioner has not raised construction over these survey numbers mentioned in the impugned notice. Therefore, Municipal Corporation, Ujjain has decided to withdraw this notice seeking liberty to issue fresh notice in case any illegal construction is found.
Since the impugned notice itself is being withdrawn, nothing survive in this petition. Liberty is granted to the Respondents to issue fresh show-cause notice to the petitioner. It is expected from the Respondents that they shall not take any action without giving opportunity of hearing to the petitioner.
With the aforesaid liberty, the petition is disposed of."
6. On 28.4.2017, the Municipal Corporation, Ujjain also issued show cause notice to Mohsin Ali in respect of illegal construction over survey no.3688 and 3690. Akbar Ali grand son of Mohammed Ali submitted reply to the said notice on 3.5.2017. The appellants have submitted an application for compounding of illegal construction by admitting that they have constructed building Part A, Part B, Part C and Part D with total built up area of 2216 sq.mt, despite eligibility of construction more than 7000 sq.mt.
7. According to the petitioner, they are owner of the 27 W.A.No.980/2017 land by virtue of agreement dated 10.08.1996 with Hakeem-ud-din, but these lands are recorded in the name of Mohsin Ali. Vide order dated 6.5.2017 (Annexure P/8), the Commissioner Corporation, Ujjain has rejected the compounding on the ground that the appellants are not owners of the entire land. Order dated 6.5.2017 reads as under :-
dk;kZy;] uxjikfyd fuxe mTtSu dzekad%& f'k-fo-@2017@387 mTtSu fnukad 06-05-2017 izfr] 1- Jherh uhyksQj ifr Jh dyhe [kkau 2- Jh dyhe [kkau firk othj [kkau fu- dksV eksgYyk gjhQkVd egkdky gk-eq- 19] othj ikdZ dkWyksuh gjhQkVd fjax jksM+ mTtSu fo"k; %& vk;qDr dh vksj ls vf/kd`r crykdj Jh jkeckcw 'kekZ }kjk e-iz- E;wfufliy dkiksZjs'ku ,DV dh /kkjk 307 dh 'kfDr;ksa dk mi;ksx dj iznRr lwpuk i= fnukad 28-04-2017A lanHkZ %& ¼1½ lwpuk i= dz- 373] 374] 375] 376 ,oa 377 fnukad 28-04-2017 ¼2½ tokch i= fnukad 02-05-2017A &&00&& e-iz- uxj ikfyd fuxe vf/kfu;e 1956 dh /kkjk 69¼4½ izko/kkfur gS fd ^^uxj ikfyd inkf/kdkjh vk;qDr dh 'kfDr;kW iz;ksx esa ykus ds fy;s l'kDr fd;s tk ldsaxs** & bl vf/kfu;e }kjk vk;qDr dks iznRr ;k ml ij vkjksfir ;k mlesa oSf"Br dksbZ Hkh 'kfDr;kW] drZO; ;k dk;Z] vk;qDr ds fu;a=.k ds v/khu rFkk mlds v/kh{k.k ds ,oa ,sls izfroU/kksa rFkk lhekvksa ds] ;fn dksbZ gks] ikyu ds v/khu] ftUgs fu;r djuk og mfpr le>s fdlh ,sls uxj ikfyd inkf/kdkjh }kjk dze'k% iz;ksx esa ykbZ tk ldsxh] lEikfnr fd, tk ldsxk ;k fu"ikfnr fd, tk ldsxsA ftls vk;qDr O;kidr% ;k fo'ks"kr% bl laca/k esa fyf[kr :i ls l'kDr djsaA M.P. MUNICIPAL CORPORATION ACT 1956 RULES 69(4) Municipal officers may be empowered to exercise the powers of Commissioner - Any of the powers, duties or functions conferred or imposed upon or vested in 27 W.A.No.980/2017 the Commissioner by this Act may be exercised, performed or discharged under the Commissioner's control, and subject to his superintendence and to such condition and limitations if any as he may think fit to prescribe, by any municipal officer whom the commissioner may generally or specially empower in writing in this behalf.
mijksDr izko/kku esa izkIr 'kfDr;kW ds v/khu gh vk;qDr dh gsfl;r ls esjs] vkns'k dzekad 2190 fnukad 04-11- 2016 }kjk gh Jh jkeckcw 'kekZ dk;Zikyu ;a=h ,oa Jh KkusUnz flag tknkSu dks iz- v/kh{k.k ;a=h dks ;Fkk vkns'kkuqlkj inh; nkf;Ro fuoZgu gsrq izkf/kd`r fd;k x;k gSA vkids }kjk izLrqr vH;kosnu fnukad 02-05-2017 dks fcUnqokj fujkdj.k fuEukuqlkj fd;k tkrk gS %& 1- lwpuk i=ksa esa mYysf[kr losZ dzekad 3664] 3665] 3666] 3691] 3694@1 eku- mPp U;k;ky; [k.MihB bUnkSj esa izLrqr WP No 2370@2017 esa mYysf[kr losZ dzekad 3690@2 ,oa 3690@3 ls fHkUu gS vr% eku- mPp U;k;ky; } kjk ikfjr vUrfje vkns'k dh vogsyuk dk iz'u gh ugha curkA 2- fcUnq dzekad 2 esa mYysf[kr loksZPp U;k;ky; } kjk fdzfeuy vihy dzekad 499@2015 ikfjr vkns'k fnukad 23-03-2015 ls uxj fuxe mTtSu ds bl izdj.k ls dksbZ oS/kkfud lEca/k ugha gSA vr% ;s fcUnq vkSfpR;ghu gksus ls vekU; fd;k tkrk gSA 3- WP No 2370@2017 esa vf/kd`r izkf/kdkjh Jh jkeckcw 'kekZ] dk;Zikyu ;a=h }kjk jktLo fjdkMZ dh oS/kkfud fLFkfr gsrq rglhynkj mTtSu dks i= dz- 357 fnukad 22- 04-2017 ls pkgh x;h FkhA blh i= ds vk/kkj ij rglhynkj mTtSu ds vkns'k ij uk;c rglhynkj rglhy mTtSu }kjk Vhe ds lkFk ekSdk fujh{k.k fd;k ,oa i= dzekad 386 fnukad 22-04-2017 e; iapukek] [kljk] vD'k ds lkFk oLrq fLFkfr ls fyf[kr esa voxr djk;kA bUgh jktLo fjdkMZ@eki@iapukek@vD'k ,oa ekfydh nLrkost QkeZ ih II esa ntZ vuqlkj] izkf/kd`r dk;Zikyu ;a=h Jh jkeckcw 'kekZ us izn'kZ R-1 ls R-7 uksfVl tkjh fd;s gS] mu mYysf[kr uksfVlksa eas losZ dzekad eku- mPp U;k;ky; esa lapkfyr izdj.k ds losZ dzekad 3690@2 ,oa 3690@3 ls fHkUu gSA eku- mPp U;k;ky; ds vkns'k vogsyuk dk iz'u gh ugha mBrkA vr% bl fcUnq dks Hkh vekU; fd;k tkrk gSA 4- bl fcUnq esa mYys[k vuqlkj vius Lo;a Lohdkj fd;k gS fd 6-677 gsDVs;j ds ewy Lokeh Jh eksfgflu vyh gS] vuqca/k ds vk/kkj ij Lo- Jh othj [kku dks vkf/kiR; esa [ksrh djus gsrq nh Fkh] vkSj blh vuqca/k dks vkius iz'uk/khu fookfnr Hkwfe dks ekfydh dk nLrkost (Proof of Title) ekudj izn'kZ 27 W.A.No.980/2017 P/9 n'kkZ;k gS tcfd e-iz- Hkwfofu;e 2012 ds fu;e 16 (11) PROOF OF TITLE etc:- Every Notice shall be accompanied by the following as evidence of applicant right, title or interest in land or plot, namely:-
(a) Attested copy of the original sale deed, lease deed or any other document under which right, title or interest in land or plot is claimed;
(b) Attested copy of khasra plan and khatauni record.
vr% pkjksa uksfVlksa esa mYysf[kr ekfydkuk --- fHkUu gksus ls mijksDr fcUnq esa mYysf[kr rF;ksa dks vekU; fd;k tkrk gSA 5- fcUnq dzekad 5 esa P/10 dks mYysf[kr uksfVl dzekad 120 fnukad 28-04-2017 Jh vjln mQZ ccyw Bsdsnkj xzhu ikdZ dkWyksuh ¼izkslhMsaV gksVy ds ihNs½ voS| dkWyksuh ds IykV ij B+G+3 ij cuk;s voS| Hkou fuekZ.k ds fo:) tkjh fd;k x;k gS] bl uksfVl ds eku- mPp U;k;ky; esa izLrqr ;kfpdk W.P.No. 2370@17 ls dksbZ laca/k ugha gSA oks i`Fkd izdj.k gSA mDr dk;Zokgh i`Fkd gksdj e-iz- uxj ikfyd fuxe vf/kfu;e 1956 dh /kkjk 307 ds varxZr dk gSA /kkjk 292&E dk ughaA vr% mijksDr fcUnq vekU; fd;k tkrk gSA 6- xzhu ikdZ ,oa othj ikdZ voS| dkWyksuh dk e-iz- dksyksukbZtj dk jftLVªhdj.k ¼fuoZU/ku rFkk 'krsZ½ fu;e 1998 ds fu;e 15B ds varxZr dksbZ dk;Zokgh izpfyr ugha gS] lkFk gh bl izdj.k ls dksbZ laca/k ugha gSA vr% bl fcUnq dks vekU; fd;k tkrk gSA 7- eku- mPp U;k;ky; [k.M ihB bUnkSj esa izLrqr ;kfpdk W.P.No.2370/17 losZ dz- 3690@2] 3690@3 {kS=Qy 2880 oxZ ehVj TCP }kjk vuqeksfnr LFky vuqeksnu dza- 416 fnukad 20-02-14 ds vk/kkj ij vk/kkfjr gSA losZ dza- 3690@2] 3690@3 ds la;qDr LokfeRo Jherh uhyksQj ifr Jh dyhe [kkau ,oa Jh dyhe [kkau firk Lo- Jh othj [kkau dk gSA ysfdu fookfnr iz'uk/khu LFky gksVy izslhMsaV ,ao esfjt gkWy 3690@2] 3690@3 ls fHkUu losZ ij fufeZr gSA lkFk gh nksuks ds jktLo fjdkMZ rglhy mTtSu dh fjiksVZ vuqlkj LokfeRo Hkh Jherh uhyksQj ,oa Jh dyhe [kkau ds uke ugh gSA ,slh fLFkfr esa e-iz- Hkwfe fodkl fuxe 2012 ds fu;e 16¼11½ Proof of Title ds vHkko esa dEikfUMax dh ik=rk dh Js.kh esa ugha vk;sxsaA vr% fd;s x;s ^^ vuqKk ds fcuk Hkouksa ds lfUuekZ.k ds vijk/kksa 27 W.A.No.980/2017 dk iz'keu NqV ,ao 'krsZ fu;e 2016 ds fu;e 5 esa mYysf[kr dkWye 3 ds iz'keu 'kqYd ds :i esa fuekZ.k vuqKk dk 5 xquk /ku izkIr dj dEikmUfMax varxZr e-iz- Hkw
--- dh /kkjk 308 A dh ifjf/k esa gksus dh ik=rk ugha j[krk] vr% bl fcUnq dks Hkh vekU; fd;k tkrk gSA 8- voS/k dkWyksuh xzhu ikdZ ,oa othj ikdZ dkyksuh ls lacaf/kr vuqca/k esa mYysf[kr Hkwfe 6-677 gsDVs;j dk laca/k eku- mPp U;k;ky; esa izLrqr ;kfpdk W.P.No.2370/17 ls dksbZ laca/k ugh gS] D;ksafd mDr ;kfpdk losZ dza- 3690@2] 3690@3 ekfyd Jh uhyksQj ifr Jh dyhe ,oa Jh dyhe firk Lo-Jh othj [kkau {kS=Qy 2880 oxZ eh- ls gSA fookfnr iz'uk/khu LFky ,ao ekSds ij fufeZr gksVy@gkWy vU; [kljs ,oa vU; ekfydh gksus ls voS/k fuekZ.k dks dEikmfMax dh ik=rk ugha j[krsA blh fcUnq dz- 8 esa vkids }kjk fu;e 4] vijk/k dk iz'keu djus dh izfdz;k dk mYysf[kr fd;k gS] ysfdu vkids }kjk fu/kkZfjr izk:i ^^d** ;k izk:i ^^[k** esa fdlh izdj.k dk dksbZ vkosnu l{ke izkf/kdkjh ds le{k izLrqr ugha fd;k gSA vr% iz'keu djus dk iz'u gh ugha mBrkA blfy;s mDr fcUnq vekU; fd;k tkrk gSA 9- bl fcUnq esa vkids mYysf[kr fd;k gS fd izkFkhZ Lo- eksfgflu vyh ds okfjl ds :i esa Lo- othj [kkau ds ofjlku }kjk vius dCts dh 5176-55 oxZ eh- ij fd;s voS/k fuekZ.k dk dEikmfUMax djus gsrq vkosnu izLrqr dj jgs gSA bl laca/k esa mYys[kuh; gS fd e-iz- jkti= fnukad 20-09-2016 ¼vuqKk ds fcuk Hkouksa ds lfUuekZ.k ds vijk/kksa dk iz'keu] 'kqYd ,oa 'krsZ fu;e 2016½ fu;e 4 %& vijk/k dk iz'keu djus dh izfdz;k %& vkosnd] vuqKk ds fcuk Hkouksa ds lfUuekZ.k ds vijk/k dk 'keu djus ds fy;s l{ke izkf/kdkjh dks vuqKk ds fcuk ;k iznku dh x;h vuqKk ds mYya/ku ds izk:i&[k esa vkosnu izLrqr djsxk] ,sls vkosnu ds lkFk lfUuekZ.k vfHkys[k rFkk nLrkost layXu fd;s tkosxs] l{ke izkf/kdkjh ,sls vkosnu izkIr gksus ds ,d ekg ds Hkhrj ekeys dk fofu'p; djsxkA ysfdu vkids }kjk fnukad 02@05@2017 dks izLrqr tokch i= dks gh fue;&4 izfriwrhZ fd;s fcuk dEikmfUMx vkosnu ds :i esa fcuk nLrkost] vfHkys[kksa dh layXu fd;s fcuk le{k izkf/kdkjh ds le{k izLrqr fd;k gSA vr% viq.kZ vizekf.kd vfHkys[kksa ,oa fu/kkZfjr izfdz;k ds vHkko esa fcUnq dz- 9 vekU; fd;k tkrk gSA vk;qDr 27 W.A.No.980/2017 uxj ikfyd fuxe mTtSu
8. This order has not been challenged in the writ petition. Thereafter, the respondents issued a detailed show cause notice dated 3.7.2017 vide (Annexure P/11), giving details of illegal construction over the land bearing Survey No.3694, 3665, 3666, 3667, 3690, 3698, 3694/1, total area 6.677 hectares and called upon appellants to submit reply. Along with the notice, they have annexed the map also describing the illegal construction. On 8.7.2017, appellant submitted a detailed reply. The respondents vide order dated 27.7.2017 (Annexure P/11) has rejected the representation on the ground that the ground raised in the petition have already been rejected vide order dated 6.5.2017 and directed the appellants to demolish the construction.
9. The appellants challenged the aforesaid order by filing a Writ Petition No.4884/2017. As per table the appellants No.1 and 2 are owner of survey nos.3690/2, 3690/3 and 3691/2. Rest of the survey numbers belonged to Mohsin Ali and Tirath Gruh Nirman Sehkari Samiti. The details of which reads as under :-
Sr. Survey Nos. Ownership
No.
1 3664, 3665, Mohsin Ali Hakimuddin son of Ibrahim etc.
3666 and
3667
2 3688, 3688 Tirthkar Grih Nirman Sahakari Sanstha
of 1
3 3690 Mohsin Ali
27
W.A.No.980/2017
4 3690/1 Ujjain Municipal Corporation Hari Pathak overbridge
5 3690/2 Smt. Nilofar W/o Kalim Khan
6 3690/3 Kalim Khan S/o Wazir Khan
7 3691/1 Mohsin Ali Khan
8 3691/2 Kalim Khan S/o Wazir Khan
9 3692 Mohsin Ali Khan
10 3693/1 Tirthkar Grih Nirman Sahakari Sanstha
11 3694/1 Mohsin Ali Khan
10. The appellants have obtained the development permission in respect of 0.288 hectare comprising in survey no.3690/2, owned by the appellant No.1 and 3690/3, owned by appellant No.2 - Kalim Khan from the Joint Director TNCP Ujjain vide letter dated 20.2.2014 Annexure R/2. They did not obtain the building permission from the respondents - Corporation as required under Section 12 and 14 of M.P. Bhumi Vikas Rules, 2012, for construction on the land of survey no.3690/2 and 3690/3 admeasuring 0.228 hectare. The respondents - Corporation noticed the appellants that there is a construction of hotel building on the land comprising in the surveys, which are not owned by the appellants. A report was called from the Tehsildar with regard to location and demarcation of construction vide letter dated 24.2.2017 and the Tehsildar after conducting physical verification of the construction submitted a report vide letter dated 22.4.2017 Annexure R/3, which reads as 27 W.A.No.980/2017 under :-
^^mijksDr lanfHkZr i= ds ikyu esa vkt fnukad 22-04-2017 dks v/kh{k.k ;a=h Jh KkusUnzflag tknkSu] Jh jkeckcw 'kekZ dk;Zikyu ;a=h o Jh jkts'kflag pkSgku mi;a=h uxjfuxe mTtSu o Jh dfye[kku ds iq= dh mifLFkfr esa gksVy izsflMsaV ,oe~ eSfjt gkWy ds fuekZ.k ds laca/k esa LFky fujh{k.k fd;k x;k ftlds vuqlkj dLck mTtSu fLFkr Hkwfe losZ ua- 3690@2 jdck 0-152 gs- Hkwfe Jhefr fuyksQj ifr dfye [kku o losZ ua- 3690@3 jdck 0-136 gs- dfye [kku oYn oftj [kku fuoklh dksVeksgYyk egkdky ekxZ mTtSu ds uke ls ntZ fjdkMZ gSA ekSds ij LFky fujh{k.k esa ik;k x;k fd losZ ua- 3690@2] 3690@3 ds lehiLFk losZ ua- 3689@2 esa ls jdck 448-3 oxZ ehVj ij islst losZ ua- 3688@1 ehu esa ls jdck 67-34 oxZ ehVj ij gksVy] losZ ua- 3690 ehu esa ls jdck 957-29 oxZ ehVj ij gkWy vkSj islst o losZ ua- 3694 esa ls jdck 125 oxZ ehVj ij fdpu dk vf/kd fuekZ.k ik;k x;k ,oe~ losZ dzekad 3690@2 ,oe~ 3690@3 ds Hkkx ij xkMZu cuk ik;k x;kA vr% e; iapukek utjh uD{kk izLrqr gSA**
11. The Municipal Corporation, Ujjain after receiving the report from the Tehsildar came to the conclusion that there is an illegal construction on the land under survey no.3694, 3689/2, 3688 and 3690, which are owned by Mohsin Ali / Hakimuddin and Tirthkar Grih Nirman Sahakari Sanstha. The respondents served a show cause notice under 307 of Municipal Corporation Act, 1956 for removal of illegal construction vide Annexure R/4. The respondents on 4.8.2017 decided the representation dated 2.5.2017 to the show-cause notice and held that there is illegal construction on survey nos.3688, 3690/1, 3691/2, 3692 and 3694/1. No document has been filed by the appellants to establish the ownership of the land in their favour. The Corporation after the order dated 21.6.2017 passed in W.P.No.2370/2017 clarified that the illegal construction is on the land under survey nos.3694 and 27 W.A.No.980/2017 3688/1 and also informed that the appellants that they have no ownership in respect of land comprising in survey nos.3694, 3655, 3666, 3667, 3690 and 3694/1 rest of the land 3690, 3698 and 3698/1. Relevant part of the letter dated 3.7.2017 reads as under :-
^^vkids }kj ekuuh; mPp U;k;ky; [k.MihB bUnkSj esa lapkfyr ;kfpdk dzekad MCy;w ih uacj 2370@2017 ds tokch i= ds le; ,d vuqca/k i= dh Nk;kizfr izLrqr dh xbZ FkhA bl vuqca/k&i= esa Jh eksgflu e`r }kjk okjflu Jhefr lkjk ckbZ fo/kok o Jhefr tqcsnk ckbZ iq=h bR;kfn ds }kjk mTtSu 'kgj esa losZ dzekad 3694] 3665] 3666] 3667] 3690] 3698] 3694@1 dqy jdck 6-677 ftlesa ls lM+d fuekZ.k esa 0-947 ,Dok;j gqvk gS] ,oe~ 0-306 gsDVs;j fod`; gqvk gS dk mYys[k gSA bl vuqc/a k ls vkidk LokfeRo izekf.kr ugha gksrk gSA**
12. The appellants being proxy of the legal heir of Akbar Ali has raised various issues, which were replied by the respondents vide letter dated 6.5.2017 Annexure R/10.
From the aforesaid, it is clear that the illegal construction is on other then survey no.3690/2 and 3690/3 owned by the appellants. It is also not in dispute that no development permission has been obtained in respect of the aforesaid survey numbers where illegal construction exist. No building permission ever been obtained by the appellants for construction of survey nos.3690, 3691/3 and in respect of all other surveys the respective landowners other than the appellants have neither obtained development permission nor building permission for construction building thereon.
13. The appellants had obtained the development permission only in respect of land admeasuring Area 27 W.A.No.980/2017 2883.33 sq.mt) of the land Survey Nos. 3690/2, 3690/3. However, no building permission from the respondents has ever been obtained even for construction of these land. The construction on these land have been without building permission is illegal. In respect of right of compounding, the stand of the respondents is that the same is available to the owner of the land on whose land illegal construction has been raised since the appellants are not the owner of the land other then falling under survey nos.3690/1, 3690/3 and 3691/2, therefore, their application for compounding is not maintainable as they have failed to establish ownership in respect of land under survey nos. 3664, 3665, 3666, 3691, 3694/1, 3691/1, 3692, 3693 and 3694/1.
14. The learned writ court has held that by virtue of agreement dated 10.8.1996, they cannot acquire the Bhoomiswami right under Section 190 of MPLR Code. Relevant part of the order by which the learned writ court after meeting the arguments of the learned counsel for the parties dismissed the writ petition, reads as under :-
"Admittedly, the petitioners are the registered owner of land bearing survey Nos.3690/2, 3690/3 and 3691/2 by virtue of sale deed. For remaining land i.e Survey No.3694, 3665, 3666, 3667, 3690, 3698, 3694/1, total area 6.677, they are claming ownership by virtue of agreement dated 10.08.1996 executed by the Hakeem-ud-din. The petitioners are placing reliance over Section 190 of the Madhya Pradesh Land Revenue Code, 1959 by submittng that they have been conferred the Bhumi Swami right by virtue of Section 190.27 W.A.No.980/2017
Section 190 of the MPLR Code says that where Bhumi Swami whose land is held by occupancy tenant to any category specified in sub Section 1 of Section 185 of the MPLR Code and if he fails to make an application within 1 year, then right of Bhumi Swami shall be accrued to the occupancy tenant in respect of the land held by him. The Section 185 MPLR Code says that every person who coming into the force of this Court holds any land in the Madhya Bharat Region as Tenant/Rayatwari Sub lessee/Jageer Land/Zamindari Land shall be called as occupancy tenant and have all right and subject to all the liablities conferred or imposed upon him, therefore, under Section 185 every person must be in possession at the time of coming into force of MPLR Code i.e on 15.09.1959. The present petitioners are claming their possession by virtue of agreement dated 10.08.1996, therefore, prima- facie, they cannot get the benefit of Section 185 and 190 of the MPLR Code, therefore, they are not the owner of the land except Survye No. Nos.3688/1, 3694 & No.3690.
The petitioners have obtained the building permission from the Town and Country Planning only for land bearing Survey No.3690/2 and 3690/3 that too in the year 2014 but they have made a construction much prior to the said date. By order dated 06.05.2017, the respondents have rejected the representation of the petitioner for compounding as they are not the owner. The said order has not been challenged by the petitioner and same has not been set aside so withdrawn. After the order dated 06.05.2017, a show cause notice dated 02.06.2017 was issued, in which, by mistake, Survey Nos.3690/2 and 3690/3 were mentioned which is the land owned by the petitioner, therefore, the respondents have withdrawn the said notice and issued a fresh show cause notice dated 03.07.2017, in which the details of the illegal construction is mentioned. Relevant 27 W.A.No.980/2017 portion of the show cause notice dated 03.07.2017 is reproduced below:
"2- ¼A½ layXu ekufp= esa Hkkx ^,** losZ Ø- 3694] 3688@1 ij gksVy izl s hMsaV Hkou fuekZ.k fcuk uxj fuxe mTtSu dh oS/kkfud LohÑfr ds voS/k fuekZ.k fd;k x;k gSA fd;s x;s voS/k fuekZ.k dk ry&okj fooj.k fuEukuqlkj gS %& gksVy dk Hkw&[k.M {ks=Qy ¾ (19.20+16.51)x18.39 = 328.35 oxZ eh-2
(I) csleasV (17.61 x 9.14) = 160.95 oxZ eh- (II) Hkw&ry (18.39 x 17.87) = 328.62 oxZ eh- (I) izFke&Hkwry (18.39 x 17.87) = 328.62 oxZ eh- (I) f}rh;&Hkwry (18.39 x 17.87) = 328.62 oxZ eh- (I) r``rh;&Hkwry (18.39 x 17.87) = 328.62 oxZ eh- (I) prqFkZ&Hkwry (17.87 x 9.46) = 169.05 oxZ eh-
dqy fuekZ.k = 169.05 oxZ eh- & ¼1½ bl izdkj dqy 1644-48 oxZ eh- fcuk l{ke LohÑfr fuekZ.k fd;k x;k gS] tks dh voS/k gSA ¼B½ fcfYMax Hkkx ^^ch** %& {ks=Qy (16.95 x 5.20) = 88.14 oxZ eh- ¼2½ ¼C½ fdpu fuekZ.k %& losZ Ø- 3694 jdok 151-97 oxZ eh-
¼fcfYMax Hkkx&^^lh**½ {ks=Qy =(14 x 9.48)+ 5.50 x 3.50 =(132.72)+19.25 =151.97 oxZ eh- ¼3½ ¼D½ blh izdkj layXu ekufp= esa n'kkZ;h fcfYMax Hkkx&^^Mh** tks dh esfjt gkWy ds uke ls tkuk tkrk gSA losZ Ø- 3690 eh- jdck 1031-12 oxZ eh- ij fcuk l{ke LohÑfr ds voS/k fuekZ.k fd;k x;k gS] ftldk fooj.k fuEukuqlkj gS %& (I) csleasV = (36.70 x 14.96) - (5.74 x 4.96) = (549.032 - 28.47) oxZ eh-
= 515.562 oxZ eh-
(II) Hkw&ry dk {ks=Qy = 515.562 oxZ eh-
&&&&&&&&&&&&&&&&&&&&&&&&&&&& dqy fufeZr {ks=Qy = 1031.12 oxZ eh & ¼4½ &&&&&&&&&&&&&&&&&&&&&&&&&&&& mDr fuekZ.k fcuk l{ke LohÑfr ds voS/k fuekZ.k fd;k x;k gSA bl izdkj vkids }kjk iz'uk/khu LFky ij fd;k x;k dqy voS/k fuekZ.k %& gksVy ¼,½] fdpu ¼ch] lh½] esfjt gkWy ¼Mh½¾ 1644-48 $ 88-14 $ 151-97 $ 1031-12 ¾ 2915-71 oxZ eh- fd;k x;k gSA 27 W.A.No.980/2017 3- vkids }kjk ekuuh; mPp U;k;ky; [k.MihB bUnkSj esa lapkfyr ;kfpdk Ø- MCY;w-ih- uEcj 2370@2017 tokch i= ds le; ,d vuqc/a k i= dh Nk;kizfr izLrqr dh xbZ FkhA bl vuqc/a k i= esa Jh eksglhu e``r }kjk okfjlku Jhefr lkjk ckbZ fo/kok o Jhefr tcsnk ckbZ iq=h bR;kfn ds }kjk mTtSu 'kgj esa losZ Ø- 3694] 3665] 3666] 3667] 3690] 3698] 3694@1 dqy jdck 6-677 ftlesa ls lM+d fuekZ.k esa 0-847 ,Dok;j gqvk gS] ,oa 0-306 gsDVj foÑ; gqvk gS] dk mYys[k gSA bl vuqc/a k ls vkidk LokfeRo izekf.kr ugha gksrk gSA 4- ekuuh; mPp U;k;ky; esa lapkfyr MCY;w- ih- uEcj 2370@2017 ds nkSjku vkids }kjk uxj fuxe mTtSu ds vkod Ø- 1534 fnukad 06-05-2017 ls izLrqr vkosnu ds lkFk Enclosure 1 ls 6 rd ekSds ij gq;s voS/k fuekZ.k ds foLr`r uD'ks daikmfMax gsrq izLrqr fd;s Fks] tks dh uxj fuxe ds izdj.k esa layXu gSA mlesa Hkh voS/k fuekZ.k ds leku estjesaV ik;s tkrs gSA Enclosure 6 esa vkids }kjk ;g Hkh Lohdkj fd;k x;k gS] dh gksVy fcfYMax] esfjt gkWy losZ Ø- 3690] 3688@1 ,oa 3694 ,oa esfjt xkMZu losZ Ø- 3690@2] ,oa losZ Ø- 3690@3 ij fLFkr gSA gksVy fcfYMax esa 26 dejs ,oa 2 MksjesVªh] 2 cM+s gkWy] 2 fdpu gSA tcfd LokfeRo lac/a kh izekf.kr nLrkostksa esa vki dsoy losZ Ø- 3690@2] 3690@3 ds ekfyd gSA vU; losZ Øekadks ds ughaA 5- vkids vfHkHkk"kd Jh euksgj nyky ds i= fnukad 11- 05-2017 ,oa i= fnukad 02-05-2017 dk lek/kkudkj.k fujkdj.k] vk;qDr egksn; ds i= Ø- 387 fnukad 06-05-2017 ls fcUnqokj fd;k tk pqdk gSA "
The petitioners submitted reply to this notice, but all the grounds raised in the notice has already been rejected by the Commissioner, Municipal Corporation vide notice dated 06.05.2017, therefore, the respondents have rightly passed the order dated 27.07.2017 and they are not required to reproduce the entire order again.
The petitioners are placing reliance over the Compounding Rules of 2016, by which, they are claiming as a matter of right that their illegal construction is liable to be compounded. In Rule 3, the word "may" is used. The competent authority may compound the offence on an application filed for compounding. The compounding is to be done subject to the condition under Section 308/A of the Rules of 2016. The basic requirement of compounding is that the person should be the owner of the property, then only, he can apply for permission of construction and compounding of construction. As stated above the title of the petitioner are in dispute and they have no clear 27 W.A.No.980/2017 title of the property except Survey Nos.3688/1, 3694 & No.3690, therefore, their application for compounding has already been rejected by the respondents vide order dated 06.05.2017 (Annexure P/8). The Rule 14 of the Madhya Pradesh Bhumi Vikas Rules, 2012 provides for development and building permission. Every person who intends to develop, erect, reerect or make alterations in any land or building shall make an application in writing to the authority & Rule 16 provides that the application shall accompany by inter alia prove of ownership or any legal right in relation to the sight.
The petitioners further submits that their application under Section 115 of the MPLR Code is pending before the Tehsildar. That Section 115 deals with the correction of entries. The land in dispute are recorded in the name of Hakeem-ud-din, Mohsin Ali and Tirath Gruh Nirman Sehkari Samiti in the revenue records. The petitioners have filed an application under Section 115 of the MPLR Code for recording their names on the basis of agreement 10.08.1996 and on the basis of the Kabja Receipt dated 27.10.1988 by which certain portion of the land was taken from the petitioners for widening of the road. Whether application under Section 115 of the MPLR Code on the basis of these documents is maintainable is yet to be decided by the Tehsildar. Even otherwise, it is settled law that revenue entries does not confer any right or title.
The apex Court in the case of Friends Colony Development Committee Vs. State of Orissa reported in (2004 AIR SCW 5923), in paragraph 20, 25 and 26 has held as under :
20. The pleadings, documents and other material brought on record disclose a very sorry and sordid state of affairs prevailing in the matter of illegal and unauthorized constructions in the city of Cuttack. Builders violate with impunity the sanctioned building plans and indulge deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water 27 W.A.No.980/2017 supply, sewerage and traffic movement facilities suffer unbearable burden and are often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the design of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorized constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop, some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders. At the same time, in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty it was to prevent unauthorized constructions, but who failed in doing so either by negligence or by connivance.
25. Though the municipal laws permit deviations from sanctioned constructions being regularized by compounding but that is by way of exception. Unfortunately, the xception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some mis-
understanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum.
27 W.A.No.980/2017The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into under hand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilized for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions.
26. The application for compounding the deviations made by the builders should always be dealt with at a higher level by multimembered High Powered Committee so that the builders cannot manipulate. The officials who have connived at unauthorized or illegal constructions should not be spared. In developing cities the strength of staff which is supposed to keep a watch on building activities should be suitably increased in the interest of constant and vigilant watch on illegal or unauthorized constructions.
The Apex Court in the case of Esha Ekta Apartments Chs Limited and others Vs. Municipal Corporation of Mumbai and another reported in (2012) 4 SCC 689, in paragraphs 21 to 25 has held as under :
21. In these cases, the trial Court and the High Court have, after threadbare analysis of the pleadings of the parties and the documents filed by them concurrently held that the buildings in question were constructed in violation of the sanctioned plans and that the flat buyers do not have the locus to complain against the action taken by the Corporation under Section 351 of 1888 Act. Both, the trial Court and the High Court have assigned detailed reasons for declining the petitioners' prayer for temporary injunction and we do not find any valid ground or justification to take a different view 27 W.A.No.980/2017 in the matter.
22. The submission of Dr. Abhishek Manu Singhvi that the constructed area should be measured with reference to the total area of the plot cannot be accepted for the simple reason that the State Government had sanctioned change of land use only in respect of 13049.45 sq. meters.
23. In view of the above, we may have dismissed the special leave petitions and allowed the Corporation to take action in furtherance of notices dated 19.11.2005 and orders dated 3/8.12.2005, but keeping in view the fact that the flat buyers and their families are residing in the buildings in question for the last more than one decade, we feel that it will be in the interest of justice that the issue relating to the petitioners' plea for regularization should be considered by this Court at the earliest so that they may finally know their fate.
24. We, therefore, direct the petitioners to furnish the particulars of the writ petitions filed for regularization of the construction which are pending before the High Court. The needful be done within a period of two weeks from today. Within this period of two weeks, the petitioners shall also furnish the particulars and details of the developers from whom the members of the societies had purchased the flats. List the cases on 16th March, 2012 (Friday).
25. If the petitioners fail to comply the aforesaid directions, the special leave petitions shall stand automatically dismissed.
The apex Court, later on, in respect of the same parties, ie., Esha Ekta Apartments Chs Limited and others Vs. Municipal Corporation of Mumbai and another reported in (2013) 5 SCC 357, in paragraphs 41 to 43 has held as under :
41. At the cost of repetition, it will be apposite to note that the Deputy Chief Engineer had rejected the request made by the architect for exemption of the area of staircase, lift and lift lobby from FSI by observing that the same is not in conformity with Clause 35(2)(c) of the 1991 Regulations because the Corporation had decided the proposal prior to coming into force of those regulations and the permissible FSI had already been exhausted. The Appellate Authority agreed with the Deputy Chief Engineer that the 1991 Regulations cannot be invoked for regularization of the disputed 27 W.A.No.980/2017 construction because the same were enforced much after rejection of the amended plans and the plot in question is situated in CRZ area.
42. In our view, the reasons assigned by the Deputy Chief Engineer and the Appellate Authority are in consonance with the law laid down by this Court in Suresh Estates Private Limited v. Municipal Corporation of Greater Mumbai (supra). The facts of that case were that after purchasing a plot measuring 8983 sq. mtrs. situated at Dr.Babasaheb Jaykar Marg, appellant Nos. 1 and 2 submitted plans to develop the same by constructing a luxury hotel in terms of the D.C. Rules. In the application, the appellants mentioned that they are entitled to additional FSI as per Rule 10(2) of the D.C Rules. The Corporation made a recommendation to the State Government that in view of the CRZ notification and the D.C. Rules, additional FSI be granted to the appellants.
The Ministry of Environment and Forest sent communication dated 18.8.2006 to the Principal Secretary, Urban Development Department, Government of Maharashtra clarifying that the D.C. Rules, which existed on 19.2.1991 would apply to the areas falling within the CRZ notification and the word "existing" means the rules which prevailed on 19.2.1991. It was also mentioned that the draft regulations of 1989, which came into force on 20.2.1991 would not apply. At that stage, the appellants filed a writ petition before the High Court with the complaint that the Corporation had not communicated its decision within 60 days. The same was disposed of by the High Court with a direction to the State Government to decide the application of the appellants within six weeks. Before this Court, it was argued on behalf of the Corporation that the D.C. Rules would not apply to the development permission sought by the appellants and the 1991 Regulations are applicable in the matter. According to the Corporation, the 1991 Regulations do not provide for additional FSI for the proposed hotel project. It was further argued that the restrictions contained in the CRZ notification will be attracted because the plot is situated in CRZ area. This Court noted that the 1991 Regulations were notified on 20.2.1991 and came into force on 25.3.1991 whereas CRZ notification was issued on 2.2.1991 and observed:
19. The word "existing" as employed in the 27 W.A.No.980/2017 CRZ notification means the town and country planning regulations in force as on 19-2-1991. If it had been the intention that the town and country planning regulations as in force on the date of the grant of permission for building would apply to the building activity, it would have been so specified. It is well to remember that CRZ notification refers also to structures which were in existence on the date of the notification. What is stressed by the notification is that irrespective of what local town and country planning regulations may provide in future the building activity permitted under the notification shall be frozen to the laws and norms existing on the date of the notification.
20. On 2-2-1991 when the CRZ notification was issued, the only building regulations that were existing in city of Mumbai, were the DC Rules, 1967. In view of the contents of CRZ II notification issued under the provisions of the Environment (Protection) Act which has the effect of prevailing over the provisions of other Acts, the application submitted by the appellants to develop the plot belonging to them would be governed by the provisions of the DC Rules, 1967 and not by the draft development regulations of 1989 which came into force on 20- 2-1991 in the form of the Development Control Regulations for Greater Bombay, 1991.
21. The argument that in view of the provisions of Section 46 of the Town Planning Act, 1966, the Planning Authority has to take into consideration the draft regulations of 1989 and, therefore, the appellants would not be entitled to additional FSI is devoid of merits.
22. Section 3 of the Environment (Protection) Act, 1986 inter alia provides that the provisions of the Act and any order or notification issued under the said Act will prevail over the provisions of any other law.
23. The phrase 'any other law' will also include the MRTP Act, 1966. As noticed earlier the Notification dated 19-2-1991 issued under the provisions of the Environment (Protection) Act, 1986 freezes the building activity in an area falling within CRZ II to the law which was prevalent and 27 W.A.No.980/2017 in force as on 19-2-1991. The draft regulations of 1989 would therefore not apply as they were not existing law in force and prevalent as on 19-2-1991.
24. In view of the peculiar circumstances obtaining in the instant case, the Court is of the opinion that Section 46 of the MRTP Act, 1966 would not apply to the facts of the instant case.
Further, when the sanctioned DC Regulations for Greater Bombay, 1991 do not apply to areas covered within CRZ II, since those Regulations came into force with effect from 25-3-1991, its previous draft also cannot apply. The draft published is to be taken into consideration so that the development plan is advanced and not thwarted. The draft development plan was capable of being sanctioned, but when the final development plan is not applicable, its draft would equally not apply as there is no question of that plan being thwarted at all. As far as development in the area covered by CRZ II is concerned, one will have to proceed on the footing that the draft plan after CRZ notification never existed. Even otherwise what is envisaged under Section 46 of the MRTP Act is due regard to draft plan only if there is no final plan. The DC Rules of 1967 were in existence as on 19-2-1991 and therefore the plan prepared thereunder would govern the case.
26. The draft regulations of 1989 were not in force as on 19-2-1991 and, therefore, would not apply to the plot in question. What is emphasised in Section 46 of the MRTP Act, 1966 is that the Planning Authority should have due regard to the draft rules (sic regulations). The legislature has not used the phrase 'must have regard' or 'shall have regard'. Municipal Corporation of Greater Mumbai which is the Planning Authority had given due regard to the draft DC Regulations of 1989 in the light of CRZ notification and recommended to the Government to grant additional FSI of 3.73 times permissible as per the Development Control Rules, 1967 over and above 1.33 permissible, to the appellants. Having regard to the facts of the case this Court is of the opinion that the contention that the Planning Authority has to take into consideration the draft regulations of 1989 and, therefore, the appellants would not be entitled to additional FSI, cannot be accepted 27 W.A.No.980/2017 and is hereby rejected.
(Emphasis supplied)
43. In view of the aforesaid judgment of the three Judge Bench, it must be held that the Appellate Authority had rightly declined to invoke the 1991 Regulations for entertaining the prayer made by the architect Shri Jayant Tipnis for regularization of the constructions made in violation of the sanctioned plan.
In view of the above discussion, I do not find illegality in the impugned notice. The petition fails and is hereby dismissed. No order as to costs.
15. Learned Senior counsel for the appellants has drawn our attention to Rule 16(11) of M.P. Bhoomi Vikas Rules, 2012 and submits that every application for compounding shall be accompanied by the documents regarding applicant's right, title or interest in the land or plot. As per agreement the appellants are having right and interest over the land in question and, therefore, their application cannot be dismissed on the ground that they were not having title over the land in question. He has also drawn our attention to Rule 14 of M.P. Bhoomi Vikas Rules, which deals with application for development or building permission and submitted that if the learned authority fail to decide the same within the specified period then, by deeming clause, the permission is deemed to be granted and the learned writ court erred in law in holding that no permission was granted to construct the hotel, which is the subject matter of the writ appeal. With the aforesaid, he prayed for setting aside of the impugned order.
27 W.A.No.980/201716. Per contra, Shri Manoj Munshi, learned counsel for the respondents has drawn our attention to the show cause notice dated 3.7.2017 (Annexure P/11) and order dated 27.7.2017 (Annexure P/1) and submits that no declaration was made by the revenue authority and, therefore, on the basis of agreement dated 10.8.1996, it cannot be said that appellants are Bhoomi Swami of the land in question. He further submitted that on the basis of the aforesaid agreement, which is of 1997, no right, title or interest can be transferred in favour of the appellants, the land is not mutated in the revenue record in the name of the appellants and there is no entry of the revenue record that present appellants are owners of the land. The report of the Tehsildar was called and the Tehsildar very categorcially stated about illegal construction made over the land in question. He has also drawn our attention to para 16 of the law laid down by the Apex court in the case of reported as Suraj Lamp & Industries Pvt. Ltd. V/s. State of Haryana and Another reported as AIR 2012 SC 206 and submitted that the learned writ court rightly dismissed the writ petition and prayed for dismissal of the writ appeal.
17. In the case in hand admitteldy, the construction was made without granting any permission from the Municipal Corporation. They have obtained building permission from the Department of Town and Contry Planning only for land bearing Survey Nos.3690/2 and 3690/3 that to in the year 2013, but they have not made construction much prior to the 3.7.2017.
18. Rule 14 of the M.P. Bhumi Vikas Niyam, Rules 2012 27 W.A.No.980/2017 states that application for permission, for development or for building. Every person who intends to develop, erect, re-erect or make alterations in any land or building shall make an application in writing to the authority and Rule 16 provides that the application shall accompany by interalia proof of ownership or any legal right in relation to any sight. The appellants failed to prove the ownership of the land in question. The land in dispute are recorded in the name of Hakim-Ud-Din, Mohsin Ali and Tirthkar Grih Nirman Sahakari Sanstha in the revenue records. Their application for recording their names on the basis of so called agreement dated 10.8.1996. The appellants are claiming Bhoomi Swami rights, under Section 190 of MPLR Code.
19. Section 190 of the MPLR Code re-supposes existence of right as an occupancy tenant belonging to any category specified in sub-section (1) of Section 185. It is necessary to conclusively prove that such right was conferred on the appellant by the superior landlord. In other words, the priority of the contract should established by evidence. Reading Section 190 of the MPLR Code open clause of sub-section (1) itself provides that "where a Bhumiswami whose land is held by an occupancy tenant", it must be proved that the appellant was an occupancy. In the present case, there is no finding regarding declaration of status of Bhumiswami in the revenue court or civil court. Thus, it cannot be said that the appellants have acquired 27 W.A.No.980/2017 Bhumiswami rights and on the basis of so called agreement of 1986, the appellant will not get any benefit. By order dated 6.5.2017, the respondents have rejected the representation of the appellant for compounding as they are not owners. The said order has not been challenged by the appellants and the same has not been set aside or withdrawn. The appellants are not the owners of the property in question and therefore, their application for compounding has been rightly rejected.
20. For these reasons, we are of the view that the order passed by the learned writ court is just and proper. No case to interfere with the aforesaid well reasoned order, as prayed by the appellants is made out.
21. Writ Appeal No.980/2017, has no merit and is, accordingly, dismissed.
(P.K. JAISWAL) (VIRENDER SINGH)
JUDGE JUDGE
SS/-
Shailesh Sukhdev
2017.11.03 12:52:33
+05'30'