Judgment:
1 W.P. No.1453/2005 IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Writ Petition No.1453 of 2005 SINGLE BENCH: JUSTICE A.K. SHRIVASTAVA Petitioners :
1. Smt. Kasturi Devi Bahety Wife of Shri Murleedharji Bahety R/o House No.535, Bombay Bazar, Khandwa, Through Attorney Holder Arun Kumar Bahety, son of Shri Murleedharji Bahety, R/o. House No.535, Bombay Bazar, Khandwa.
2. Soubhah Chandra Jain (dead) through LRs (i) Sudhir Kumar Jain, S/o Soubhah Chandra Jain, R/o Vinayak Rao Joshi Marg, Ramganj Ward, Khandwa. (ii) Sunil Kumar Jain, S/o Soubhah Chandra Jain, R/o Vinayak Rao Joshi Marg, Ramganj Ward, Khandwa. (iii) Smt. Suman Jain, W/o Shri Gulab Chand Jain, R/o Vinayak Rao Joshi Marg, Ramganj Ward, Khandwa. (iv) Smt. Sudha Jain, W/o Late Saroj Kumar Jain, R/o Satna Hospital Private Ltd., In front of Allahabad Bank, Station Road, Satna. (v) Smt. Sunita Jhalawat, W/o Shri Vina Jhalawat, R/o. R, Anoop Nagar, Indore. 2 W.P. No.1453/2005 (vi) Smt. Savita Doshi, W/o Shri Naveen Bhai Doshi, R/o Flat No.404, 4th Floor, Near Sardar Health School, Anand (Gujarat) -Versus- Respondents :
1. State of Madhya Pradesh, Through the Secretary, Town and Country Planning, Vallabh Bhawan, Bhopal.
2. Municipal Corporation, Through the Commissioner, Khandwa.
3. The Appeal Committee, Municipal Corporation, Through Mayor Shri Vir Singh, Khandwa.
4. The Superintendent of Police, Khandwa.
5. Shri Dilip Kumar Shrimali, S/o Shri Laxman Prasad Shrimali, R/o House No.534, Bombay Bazar, Ramganj Ward, Khandwa. --------------------------------------------------------------------------------------- Petitioners by - Shri Vivek Rusia, Advocate. Respondent No.1 /State by - Shri Sudesh Verma, Govt. Advocate Respondent no.2 by - Shri Quasim Ali, Advocate Respondent No.5 by - Shri Avinash Zargar, Advocate Date of hearing – 09/07/2013 Date of Order - 12/07/2013 ORDER
(12 /07/2013) 3 W.P. No.1453/2005 By this petition under Articles 226 & 227 of the Constitution of India, the petitioners are seeking following reliefs:- “(i) Quash the impugned order of the appellate committee dated 9.3.2005 (Annexure P/11); (ii) the respondents be directed to demolish the illegal construction raised by the respondent no.5; (iii) the respondent no.5 be directed to compensate the petitioners for damages caused to their houses due to his illegal construction; (iv) the respondent no.5 may kindly be restrained not to sale or transfer the property in dispute; (v) any other order which it under the circumstances deems fit may kindly be passed.”
2. Following are the unfolded facts since they have not been disputed by respondents also. S.No Dates Particulars 1. 16.2.2002 Late Laxman Prasad Shrimali father of respondent no.5 submitted application for permission for construction of basement, ground floor and first floor.
2. 22.3.2000 Permission was granted 3. 19.4.2000 Executive Engineer has kept the construction under suspension and directed him to stop the construction with immediate effect.
4. 1.5.2000 Commissioner cancelled the permission of construction made by respondent no.5 and his father.
5. Petitioner filed the Civil Suit No.39A/2000 6. 18.8.2000 Appeal filed by Respondent no.5 was dismissed by the Appellate Committee of the Municipal Corporation on the ground that the entire construction was in violation of the Rules and the sanctioned map. 4 W.P. No.1453/2005 7. That Respondent no.5 preferred the appeal before the District Judge which was dismissed.
8. Against the order of District Judge, Respondent no.5 preferred the writ petition No.5630/2000 in which the Municipal Corporation filed the return contending that the entire construction was made contrary to sanction map.
9. 28.2.01 The Hon'ble High Court directed for inspection of the building by CE/SE Building & Road of Public Works Department.
10. 20.08.01 The Respondent no.5 filed the Review Petition before the appellate Committee of the Municipal Corporation 11. 4.9.2002 The Respondent No.5 withdrew the writ petition.
12. 10.9.2002 The Appeal Committee reviewed its earlier order and granted the permission for construction of basement and gallery.
13. The present petitioner filed the writ petition No.5331/2002 against the order of review.
14. 30.9.2002 This Court in W.P. No.5531/2002 passed stay order.
15. 15.12.04 The Hon'ble High Court remanded the matter to the appellate authority to take decision afresh after giving opportunity to the petitioner.
16. 9.3.2005 The Appellate Committee passed the order in favour of Respondent no.5 17. 2006 Against the order of appellate authority the present writ petition was filed.
3. Earlier to this petition one more petition W.P. No.5331/2002 was filed, the reference whereof has been mentioned at Item No.13 and 14 of the aforesaid unfolded facts. The order of this Court in the said writ petition dated 15.12.2004 has been placed on record as Annexure P/10. A long chequered history has been engrafted in the aforesaid order passed by this Court on 15.12.2004 in W.P. No.5331/2002 and by examining each and every aspect of the matter by quoting different orders which were 5 W.P. No.1453/2005 passed in favour of petitioners, ultimately this Court disposed of the petition by passing the following directions:-
“13. In these circumstances, in the interest of justice, I find it appropriate to remit the matter to the appellate committee to decide it afresh with following directions:- 1. The order Annexure P/18 passed by appellate Committee is hereby set aside.
2. The matter is remitted back to the appellate Committee, Municipal Corporation, Khandwa to decide it afresh.
3. A fresh appellate Committee be constituted in accordance with law. At the time of constitution of appellate Committee, the previous members if still continuing in the Corporation will not be appointed as members of the appellate Committee. The appellate Committee shall issue notice to the petitioners, respondent nos.5 and 6 and shall also visit on the spot and thereafter shall decide the matter.
4. At the time of decision of the matter the appellate Committee shall consider the inspection report of Executive Engineer, P.W.D. and Executive Engineer, Municipal Corporation dated 25.4.2004 and while deciding the matter finally shall give due weight to the report.
5. The appellate Committee shall also consider the discrepancies in the sanction map issued to the respondent no.5 and copy of which was retained in the Municipal Corporation. In this regard it shall record its findings and do all the needful.
6. The appellate Committee shall be empowered to recall, modify or alter the permission granted earlier. The 6 W.P. No.1453/2005 appellate Committee shall also consider for imposing of certain conditions on respondents nos. 5 and 6 (if it decides to grant some sanction) in respect of damage caused to the houses of petitioners, apprehension of future danger or loss of petitioners and safety of buildings.
7. The appellate Committee shall decide the matter expeditiously as far as possible within a period of two months from the date of communication of the order or constitution of the Committee.
8. Till the Committee decides the matter, the respondents nos.5 and 6 shall not raise any construction in the building and the ad-interim writ issued on 30.9.2002 shall continue till the decision by appellate Committee.”
4. After passing of the aforesaid order by this Court, the impugned order Annexure P/11 dated 09.03.2005 has been passed by the Appellate Committee of the Municipal Corporation by condoning the illegal construction made by respondent no.5 under Section 308-A of the Madhya Pradesh Municipal Corporation Act, 1956 (in short, the Act of 1956) by further holding that in terms of the directions given by this Court in the aforesaid writ petition, it is not necessary to dismantle the illegal construction.
5. I have gone through the aforesaid order of this Court. Nowhere such a direction has been given by this Court although it has been simply observed that if the illegal construction which 7 W.P. No.1453/2005 has been raised by respondent no.5 is dismantled, the relationship between the petitioners and the 5th respondent may become strain. The purpose of quoting directions given by this Court while disposing of the aforesaid writ petition is that there is no direction of this Court earlier that illegal construction which has been raised cannot be dismantled.
6. Shri Avinash Zargar, learned counsel appearing for the 5th respondent has submitted and admitted that construction which is made by respondent no.5 is illegal and not in consonance to the sanction map but he has submitted that by exercising power under Section 308-A by the Appellate Committee, the illegal construction made by 5th respondent has been condoned and, therefore, nothing remains in this petition. However, I do not find any merit in the said contention because several reasons have been assigned by this Court while disposing of the aforesaid writ petition which I have mentioned hereinabove. Inter-alia one of the direction is that the Appellate Committee shall consider the inspection report of Executive Engineer, P.W.D. and Executive Engineer, Municipal Corporation dated 25.04.2004 and while deciding the matter finally shall give due weightage to the said report. However, I do not find any such consideration and weightage in the impugned order Annexure P/11 passed by the Appellate Committee. Further, in direction no.5 it has been directed by this Court that Appellate Committee shall consider the 8 W.P. No.1453/2005 discrepancies in the sanction map issued to the respondent no.5 and in this regard it shall record its findings and do the needful. However, the said direction has been mis-interpreted by the Appellate Committee holding that the illegal construction can be validated by compounding it.
7. Similarly, direction no.6 has not been taken into account and no order has been passed in regard to the damages caused to the petitioners and future damages or loss of petitioners in the impugned order. Thus, I am of the view that since the impugned order Annexure P/11 is not in consonance to the directions given by this Court in the aforesaid writ petition, the same cannot be allowed to remain stand and is hereby set aside. The Appellate Committee is hereby directed to redecide the case strictly in terms of the aforesaid order passed by this Court in W.P. No.5531/2002 decided on 15.12.2004 and directions which were given and may pass fresh order to do the needful and may pass order in terms of the said order and if it thinks fit may direct to dismantle the illegal construction because there is no direction of this Court not to dismantle the illegal construction. The Appellate Committee shall further assign reasons that whether the illegal construction which has been made can be compounded within the parameters of clauses (a) and (b) to Section 308-A of the Act of 1956. Let the decision be taken within two months from the 9 W.P. No.1453/2005 date of submitting certified copy of this order to Appeal Committee by the petitioners.
8. Before parting with the order, I would like to mention here that on 22.3.2000 the permission to raise construction was granted to the 5th respondent. However, less than for a period of one month from the date of permission, on 19.4.2000, the Executive Engineer kept the construction under suspension and directed the 5th respondent to stop the construction with immediate effect. Thereafter throughout there was an interim stay in favour of the petitioners and this Court also in the aforesaid writ petition directed Laxman Prasad Shrimali who is the father of present respondent no.5 and was arrayed as 5th respondent in that petition and 6th respondent (present respondent no.5 Dilip Kumar Shrimali) not to raise any construction in the building and the ad-interim writ issued on 30.09.2002 was directed to continue till the decision of the Appellate Committee. It is also gathered from the aforesaid order that a contempt case was also filed against the respondents. This Court in aforesaid petition from paras 2 to 4 in great detail has observed the malafide attitude and conduct of the respondent no.5 that by flouting the interim order he did not stop to raise construction and was raising construction day to day. It was also found by this Court when the report of Chief Engineer/Superintending Engineer (Building and Road) and the 10 W.P. No.1453/2005 competent authority from Central Public Works Department was received against the 5th respondent and all reports are against him, he got his writ petition (writ petition No.56300/2000 in which present petitioner was also intervener) dismissed as withdrawn on 4.9.2002 without any liberty to file fresh petition, therefore, according to me, the equity is not in favour of respondent no.5 because despite several interim orders were passed against him in the writ petition as well as in the civil suit, he raised the illegal construction day to day.
9. This petition is accordingly allowed with costs. The 5th respondent shall bear the cost of the petitioners. Counsel fee Rs.5000/-, if pre-certified. (A.K. Shrivastava) Judge rao 11 W.P. No.1453/2005