Madhya Pradesh High Court

Gokul Apartment Association Thr ... vs Indore Municipal Corporation on 26 July, 2021

Author: Subodh Abhyankar

                                        1
                                                              WP No.18012/2020

          High Court of Madhya Pradesh, Jabalpur
                      Bench at Indore
                  Writ Petition No.18012/2020
                           (Gokul Apartment Association
                                Through its President
                       Sushil Agrawal s/o Nandramji Agrawal
                                      Versus
                           Indore Municipal Corporation.
                              Through Commissioner,
                                      Indore
                                 The Zonal Officer,
                           Indore Municipal Corporation,
                                      Indore
                           M/s. Jabalpur Motors Pvt. Ltd.
                                Through its Director
                         Vishal Gautam s/o Rajive Gautam)

                                   *****
Shri Praveen Pal, learned counsel for the petitioner.
Shri Pushyamitra Bhargava, learned Additional Advocate General for
respondents No.1 and 2 / Indore Municipal Corporation.
Shri Ravindra Singh Chhabra, learned counsel for respondent No.3 / M/s.
Jabalpur Motors Pvt. Ltd..
                                   *****
                            ORDER

(Passed on this 26th day of July, 2021)

This petition under Article 226 of the Constitution of

India has been filed by the petitioner - Gokul Apartment

Association, 8/2, Yashwant Niwas Road, Indore (MP) a society

registered under the provisions [Section 3 (e)] of Madhya Pradesh

Society Registrikaran Adhiniyam, 1973, seeking the following relief

(s): -

"(i) issue a writ or order in the nature of mandamus or other appropriate writ to direct the respondent No.1 and 2 to remove the encroachment or illegal construction made by re- spondent No.3 at Basement and Ground Floor of the Gokul Apartment,

(ii) grant cost of the present proceedings,

(iii) grant any other relief which deems fit by this Hon'ble Court to grant in the facts and circumstances of the case."

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2. The petitioner's grievance is that certain encroachment

and illegal construction has been made by respondent No.3 in the

basement area of Gokul Apartment, which is not only illegal but has

caused serious inconvenience to the flat owners of Gukul Apartment.

3. Shri Praveen Pal, learned counsel for the petitioner has

submitted that in the basement area of Gokul Apartment situated at

8/2 Yashwant Niwas Road, Indore (MP), respondent No.3 - M/s.

Jabalpur Motors Private Limited has made illegal construction and

encroached upon the same to the utter inconvenience of the other flat

owners Hence, the area which is a common open space and

encroached upon by respondent No.3 needs to be removed.

4. Counsel for the petitioner has also drawn the attention

of this Court to the panchnama / notice prepared by the Indore

Municipal Corporation itself on 27.11.2020 and annexed with the

reply filed on behalf of respondents No.1 and 2 / Indore Municipal

Corporation wherein it is clearly mentioned that in the basement area

of the aforesaid apartment, certain construction work is going on by

changing the nature of the parking area for which, the residents of

Gokul Apartment have serious objection. Thus, it is submitted that

the petition deserves to be allowed, as it is apparent from the

documents filed by the respondents themselves that respondent No.3

has encroached upon the property of Gokul Apartment, which is a

Common Area.

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5. Shri Ravindra Singh Chhabra, learned counsel for

respondent No.3 M/s. Jabalpur Motors Private Limited has opposed

the prayer and preliminary objection has been raised regarding the

maintainability of the petition.

6. It is submitted by Shri Chhabra that the petition involves

disputed questions of facts hence is not maintainable under Article

226 of the Constitution of India; and the petitioner can assail the

aforesaid action of respondent No.3 in the competent Court of Law

inter alia under Section 307 (5) of Municipal Corporation Act, 1956

(herein after referred to as the Act).

7. In support of his contentions, Shri Chhabra has also

relied upon a Full Bench decision of this Court in the case of Dilip

Kaushal & others v. State of Madhya Pradesh & others reported

as (2008) 3 MPLJ 591 as also a Division Bench judgment in the

case of Radhakishan Sharma v. Pravin Kumar & two others

reported as 1996 MP ACJ 55.

8. Counsel has further submitted that before taking up the

construction work, respondent No.3 had ensured compliance of all

the procedural requirement of Municipal Corporation and all

permissions were also obtained, copies of such permissions have also

been placed on record.

9. Counsel has also drawn the attention of this Court to the

sale-deed through which a part of Gokul Apartment was purchased

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by respondent No.3 wherein, in Clause (4) it is mentioned that the

"Open Space" in front of the building facing Main Road, ad-

measuring 40' X 30' sq. ft. shall remain in exclusive land of

answering respondent No.3. Similarly in Clause (5) and Clause (10)

of the Deed, the other rights regarding the land have been assigned to

the petitioner.

10. A rejoinder to the aforesaid reply has also been filed by

the petitioner and it is submitted that since the petitioner does not fall

within the definition of Section 307 (5) of the Act, he cannot

challenge the same under Section 307 (5) of the Act, to which Shri

Ravindra Singh Chhabra, counsel for respondent No.3 has relied

upon a decision rendered in the case of Radhakishan Sharma

(supra) and it is submitted that "any other person" employed in

Section 307 (5) of the Act will not only include such person (s) who

are directly affected, but would also encompass all persons who are

resident of the area to which the Act applies.

11. Respondents No.1 and 2 have also filed their reply and

placed on record the panchnama in respect of the property. Shri

Pushyamitra Bhargava, learned Additional Advocate General

appearing for respondents No.1 and 2 / Indore Municipal

Corporation has also raised a preliminary objection regarding the

maintainability of the petition and it is submitted that the rights,

which the petitioners are assailing in the present case, are the

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easementary rights for which, the efficacious remedy available to

them, is to approach the Civil Court; and thus, since the disputed

question of facts are involved, the petition is liable to be dismissed

on this count only.

12. Shri Bhargava has referred to the Panchnama prepared

at the instance of Municipal Corporation on 30.11.2020 (Annexure

R/3) wherein the factual aspect of the disputed property has been

noted; and in the inspection report the present status of the property

on the spot and the construction by respondent No.3 is mentioned.

13. Counsel has submitted that so far as the panchnama

dated 27.11.2020 is concerned, which is also filed along with the

reply and on which the counsel for the petitioner has heavily relied

upon, it is a panchnama prepared at the instance of the flat owner of

the apartment / building and it does not depict the actual physical

status of the property. Thus, it is submitted that aforesaid aspect of

the matter has been wrongly interpreted by the petitioner.

14. After having heard counsel for the parties and scrutiny

of the record, this court finds that the petition is misplaced having

filed directly in the High court under Article 226 of the Constitution

of India for the reasons assigned herein below: -

Firstly, from the record, it is apparent that the disputed

questions of facts are involved in the case as the respondent no.3 has

taken a specific stand that it has already obtained necessary

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permission from the respondent Municipal Corporation before

commencing the construction work. These various permissions have

also been kept on record and have not been denied by the Municipal

Corporation. It is also found that the so far the Panchanama R/3

dated 27.11.2020 filed by the Respondent no.1 Municipal

corporation, it only discloses that present status of the property and

nothing else whereas the other Panchnama R/1 dated 27.11.2020, on

which the counsel for the petitioner has also relied upon, only

discloses the grievance of the petitioner against the respondent no.3.

Thus, both these Panchnamas are of no good use to decide the lis

between the parties. Thus, various disputed questions of facts are

involved in the petition which cannot be decided summarily only on

the basis of affidavits.

Secondly, in the considered opinion of this court, the

reliefs sought by the petitioner can only be claimed under the

provisions of s.307(5) of the Municipal Corporation Act, 1956 which

provides for,'Power to require removal or alteration of work not in

conformity with bye-laws or any scheme or any other requirement' .

15. The contention of Shri Pal that the petitioner has no

locus to resort to this section is also unfounded as it has already been

held by the Full Bench of this court in the case of Dilip Kaushal and

Others (supra) that s.307 (5) as under:-

" 9. We also find from para 16 of the opinion of the

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Division Bench in Radhakishan Sharma (supra) that the Division Bench has held that in the event of wrongful act affecting the public, recourse to suit in terms of Section 91 of the Code of Civil Procedure, 1908 (for short 'the CPC) becomes necessary. Sub- section (1) of Section 91, C.P.C. provides that in case of public nuisance or other wrongful act affecting or likely to affect the public, a suit for declaration and injunction or for such other relief as may be appropriate in the circumstances may be instituted and Sub-section (2) of Section 91 of the C.P.C. states that nothing in the section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions. Thus, it is clear that Section 91(1) of the C.P.C. is not exhaustive of the remedies that are available to a party even in case of a public nuisance or other wrongful act affecting or likely to affect the public. The remedy of the Corporation and any other person under Sub-section (5) of Section 307 of the Act of 1956 is independent of the provisions of Section 91 of the C. P. C. and not only the Corporation but any other person can apply to the District Court for injunction for removal or alteration of a building on the ground that the provisions of the Act of 1956 or the byelaws made thereunder have been contravened."

(emphasis supplied)

16. In view of the aforesaid discussion, the petition is liable

to be dismissed as having not maintainable and the accordingly, the

same is hereby dismissed with liberty reserved to the petitioner to

take recourse of alternative remedy as is available to it under law.