Madhya Pradesh High Court
Hemant Yadav vs The State Of Madhya Pradesh on 11 January, 2016
WP-4202-2015
(HEMANT YADAV Vs THE STATE OF MADHYA PRADESH)
11-01-2016
Parties through their counsel.
The petitioner before this Court has filed this present
petition for issuance of an appropriate writ, order or
direction directing the respondents not to remove the
construction carried out by the petitioner over a plot admeasuring area 3438 sq.fts..
Petitioner's contention is that he has purchased the suit property vide an agreement of sale dated 19.05.2014 and the possession was also handed over to him. He has further stated that he has constructed shops over the plot in question and without granting any opportunity of hearing and without any authority the impugned order has been passed on 15.05.2015. Petitioner's contention is that he has raised various grounds before this Court and his contention is that the order passed by the respondents/municipal corporation is bad in law. It has been further stated that the land is not a revenue land and it is diverted land and plot has been sanctioned by the Town and Country Planning Department and the respondent No.2 has no authority to pass the order of demolition. It has also been stated that an inquiry was conducted from the municipal officer on the instructions received from the office of the Chief Minster and no illegal construction was found on the plot, therefore, the order of destruction is bad in law. A reply has been filed by the Indore Municipal Corporation duly supported with an affidavit. It has been stated in the reply that the petitioner is not the owner of the land in question and an unauthorized construction has been done on Nala without obtaining permission under The Madhya Pradesh Municipal Corporation Act, 1956 and as there is no permission of construction over the land in question, notice has been issued by the Indore Municipal Corporation, which is in consonance with the provisions as contained in The Madhya Pradesh Municipal Corporation Act, 1956. Learned counsel appearing for the Indore Municipal has prayed for dismissal of the writ petition.
It has also been stated in the reply that in the structure, which has been constructed by the petitioner, all kinds of illegal activities are going on and the structure over the land is being used for the purpose of gambling and for the purpose of sale of liquor and even ladies of the locality are not able to go out side of their houses on account of antisocial elements, who regularly gather in the premises everyday of the land in question. Learned counsel submits that the notices issued to the petitioner do not warrant any interference.
There is an application of intervention also i.e. I.A. No.4969/15.
Arguments heard. Same is allowed.
In the intervention application, it has been stated that the plot in question was in the ownership of a housing society namely Brajeshwari Apartment Co- operative Society Ltd. and it was sold to the intervenor i.e. Plot No.C-1. Receipt of delivery of possession to the intervenor has also been filed on 09.02.2007 and the intervenor has raised temporary constructions over the plot for storing building material, however, the petitioner has encroached the plot in question on the basis of forged and frivolous sale-deed and he is trying to establish that he is the owner of the land in question.
Certain newspaper clippings have also been brought to the notice of this court to reflect the conduct and character of the petitioner, however, this Court is not deciding the character and conduct of the petitioner and the case is confined only to the structure, which is over the land in question and in respect of which the notices have been issued by the municipal corporation.
Heard the learned counsel for the parties and as consented by the parties, in spite of hearing the matter on the question of vacating the stay, the matter is heard on the question of admission. It has been stated by the learned counsel for the petitioner that the land in question is under the ownership of the petitioner and he has purchased the land in question vide an agreement of sale. This Court is encountering such type of submission for the first time as it is being argued that on the basis of an agreement of sale, the petitioner has become the owner of the land, not only this the agreement is of the year 2015 and it is an unregistered and unstamped agreement. This Court in the case of Amit Dixit V. Smt. Sadhana Singh and others in paragraph Nos.12 and 13 has held as under:-
â12. This point is no more res integra. AIR 2003 Karnataka 241 (K.B. Jayaram and another v. Navineethamma and others), Justice Tirath S. Thakur (as His Lordship then was) opined that no instrument chargeable with duty shall be admitted in evidence âfor any purposeâ by any person or even by consent of parties. In para 4 of said judgment, it is held that the Court below should first insist upon payment of stamp duty and penalty on the agreement to sale before it. Thereafter, only prayer for injunction could have been considered. The order of Court below was disapproved where it has issued injunction subject to payment of stamp duty and penalty. Thus, payment of stamp duty is condition precedent for considering the prayer for injunction also. This Court in 2009 (1) MPLJ 176 (nabada prasad Agrawal V. Tarun Bhawasar), opined that unless a duty is paid on an instrument it shall not be admitted in evidence for any purpose including collateral purpose. The apex Court in (2009) 2 SCC 532 (Avinash Kumar Chauhan V. Vijay Krishna Mishra), opined as under:-
â25. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposesâ (Emphasis Supplied).
13. In the light of aforesaid, it is clear that the very basis for establishing right i.e. Agreement to sell cannot be considered, unless it is duly stamped. The Courts below have not committed any error in rejecting the injunction application because the document was not stamped.
In view of this conclusion, it is not necessary to deal with other points raised by the parties. It will be open for the petitioner to get the document stamped and take action as per relevant provisions of the Stamp Act, so that document is properly stamped. It will be open to the Court below to consider such stamped agreement in accordance with law. At this stage, there is no reason to interfere with the impugned order.â In light of the judgment delivered by this Court in the aforesaid case, an agreement of sale cannot be considered unless it is duly stamped. In the present case also, the agreement is an unregistered and unstamped agreement and by no stretch of imagination, the petitioner can become owner of the land in question by virtue of agreement to sale. Secondly, the shops constructed by the petitioner have been constructed without any sanction by the municipal corporation.
Sections 293 and 294 of The Madhya Pradesh Municipal Corporation Act, 1956 read as under:-
â293. Prohibition of Erection or re- erection of buildings without permission - (1) No person shall-
(i) erect or re-erect any building; or
(ii) commence to erect or re-erect any building; or
(iii) make any material external alteration to any building; or
(iv) construct or re-construct any projecting portion of a building which the Commissioner is empowered by Section 305 to require to be set back or is empowered to give permission to construct or reconstruct,-
(a) unless the Commissioner has either by an order in writing granted permission or has failed to intimate within the prescribed period his refusal of permission for the erection or re-erection of the building or for the construction or re-construction of the projecting part of the building; or
(b) after the expiry of one year from the date of the said permission or such longer period as the Commissioner may allow or from the end of the prescribed period, as the case may be:
Provided that nothing in this section shall apply to any work, addition or alteration which the Corporation may by bye-law declare to be exempt. (2) If a question arises whether a particular alteration in or addition to an existing building is or is not a material alteration the matter will be determined by the Commissioner. (3) Any person aggrieved by the order of the Commissioner in this behalf may appeal to the district court within thirty days of such order in the manner prescribed therefore and the decision of the district court shall be final.
294. Notice of Buildings.- (1) Every person who intends to erect or re-erect a building shall submit to the Commissioner-
(a) an application in writing for a approval of the site together with a site plan of the land; and in the case of land which is the property of the Government or of the Corporation a certified copy of the documents authorizing him to occupy the land, and if so required by the Commissioner the original document or documents; and
(b) an application in writing for permission to build together with a ground plan, elevation and section of the building and a specification of the work to be done.
(2) Every plan of any building to be constructed wholly or partly of masonry, submitted under sub-section (1) shall, in token of its having been prepared by him or under his supervision, bear the signature of a licensed surveyor.
(3) Every document submitted under sub-section (1) shall be prepared in such manner and shall contain such particulars as may be prescribed by byelaws.
(4) Nothing herein contained shall require a person to comply with the provisions of clause (b) of sub-section (1) until such time as the site has been approved by the Commissioner or such person as he may appoint.â Notices have been issued in the matter for removal of unauthorized construction. Learned counsel for the Indore Municipal Corporation has informed this Court that it is not a case where the notice was not given to the petitioner. He has further stated that first notice was given to the petitioner on 15.05.2015, which is on record as R-3 and thereafter, notice of demolition was also given to the petitioner on 30.06.2015.
This Court has carefully gone through the notices issued by the respondents and in light of the fact that there is no sanction of any kind, the petitioner is not owner of the property in question and, therefore, the respondent-municipal corporation was justified in issuing the notices and in taking consequential action in the matter. It has been stated in the writ petition that the matter was thoroughly probed on the instructions of the Chief Minister. The so called inquiry relates to construction over Nala and the so called inquiry is not relating to unauthorized construction raised by the petitioner over the plot in question. Therefore, this Court is of the considered opinion that in light of the statutory provisions of law as contained under the The Madhya Pradesh Municipal Corporation Act, 1956 read with Rule 7 Sub-rule 3 of M.P. Bhumi Vikas Niyam, 2012, the building officer does have the power to remove the illegal construction and the same is being done by the building officer.
Resultantly, no case for interference with the petition is made out. The petition is accordingly dismissed with the cost of Rs.25,000/- and the building officer is directed to remove the construction forthwith and to recover the cost. The cost recovered be deposited with the M.P. State Legal Services Authority.
(S.C.SHARMA) JUDGE