Madhya Pradesh High Court
Smt. Rajiya vs Indore Municipal Corporation on 18 April, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 18 th OF APRIL, 2023
WRIT PETITION No. 4576 of 2023
BETWEEN:-
SMT. RAJIYA W/O SHRI SALEH HUSSAIN, AGED ABOUT
69 YEARS, OCCUPATION: HOUSE WIFE HOUSE, R/O
HOUSE NO. 13, MASAKIN-E-SAIFIYA, GRAM BIJALPUR,
DISTRICT INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI PALASH CHOUDHARY, LEARNED COUNSEL FOR THE
PETITIONER.)
AND
1. INDORE MUNICIPAL CORPORATION THROUGH
COMMISSIONER OFFICE OF THE INDORE
MUNICIPAL CORPORATION, DISTRICT INDORE
(MADHYA PRADESH)
2. BUILDING OFFICER, MUNICIPAL CORPORATION
ZONE NO. 13, OFFICE OF THE INDORE,
MUNICIPAL CORPORATION, INDORE (MADHYA
PRADESH)
3. DR. TABASSUM CHANDRUWALA D/O MR. HASAN
ALI CHANDURWALA OCCUPATION: DOCTOR, R/O
12, MASAKIN-E-SAIFIYA COLONY, BIJALPUR,
INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI AMOL SHRIVASTAVA, LEARNED COUNSEL FOR THE
RESPONDENT.)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
Petitioner is mainly aggrieved by the action of respondent No.3 who has Signature Not Verified raised the construction after getting the map sanctioned.
Signed by: DIVYANSH SHUKLA Signing time: 18-04-2023 18:29:16 2According to the petitioner, the map has wrongly been sanctioned by the Municipal Corporation and despite representation submitted by the petitioner and the direction given by this Court same has not been decided, therefore, this present petition is filed.
Shri Amol Shrivastava, learned counsel for the respondent submits that there is a specific provision under Section 307 of the Municipal Corporation Act, where the petitioner is having alternate and efficacious remedy because there are various disputed question of facts involved and the petitioner is having an alternate and efficacious remedy under Section 307 of the Municipal Corporation Act which is reproduced below:
307. Power to require, removal or alteration of work not in conformity with byelaws or any scheme or any other requirement.-
(1) If any building is erected or re-erected in contravention of any town planning scheme mentioned under section 291 or of any building byelaws made under section 427, the Commissioner without prejudice to his right to take proceedings for a fine in respect of the contravention, may by notice require the owner either to pull down or remove the work or , if he so elects, to effect such alterations therein as may be necessary to make it comply with the said scheme or byelaws.
(2) If a building is erected or re-erected-
(a) without any sanction as required by section 293(1) or
(b) when sanction has been refused, or
(c) in contravention of the terms of any sanction granted, or
(d) when sanction has lapsed under section 300. the Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 18-04-2023 18:29:16 3 Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under section 294, shall-
(a) by written notice, require the person who is erecting such building or executing such work or has erected such building or executed such work on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Chief Executive Officer, to show sufficient cause why such building or work shall not be removed, altered or pulled down, or;
(b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally or by an agent duly authorized by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down.
(3) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the person.
(4) If the plans are approved by the Commissioner and the approval is communicated to the person intending to build the house or if the plans are rejected by the Commissioner but no notice of their rejection is given to person intending to build the house within the prescribed period, it shall not be open to the Commissioner to give a notice under sub-section (1) and (4) on the ground that the building is erected or re-erected in contravention of Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 18-04-2023 18:29:16 4 any scheme or byelaws or any other requirements under the chapter.
(5) Nothing in this section shall affect then right of the Corporation or any other person to apply to the District Court for an injunction for the removal or alteration of any building on the ground that it contravenes any provision of this Act or the byelaws made thereunder, but if the building is one in respect of which plans have been deposited and the plan s have been passed by the Commissioner, or notice that they have been rejected has not been given within the prescribed period after the deposit thereof, and if the work has been executed in accordance with the plans, the District Court on granting and injunction shall have power to order the Commissioner to pay to the owner of the work such compensation as the District Court thinks just, but before making any such order the District Court cause the Commissioner if not a party to be joined as a party to the proceedings. In view of the above, Writ Petition is disposed off with liberty to avail the appropriate remedy available under the law.
(VIVEK RUSIA) JUDGE Divyansh Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 18-04-2023 18:29:16