Harday Mohan Bohare vs The State Of Madhya Pradesh
2022 Latest Caselaw 13481 MP

                            1

        IN THE HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 13th OF OCTOBER, 2022

              WRIT PETITION No.7171 of 2022

      BETWEEN:-

      HARDAY MOHAN BOHARE S/O
      SHRI BRIJ NARAYAN BOHARE,
      AGED 68 YEARS, OCCUPATION-
      RETIRED R/O 141, MAYUR NAGAR,
      THATIPUR, LASHKAR, GWALIOR,
      (MADHYA PRADESH)
                                         ........PETITIONER

      (BY SHRI N.K. CHATURVEDI - ADVOCATE)

      AND

1.    STATE OF MP THROUGH ITS
      PRINCIPAL SECRETARY, URBAN
      ADMINISTRATION           &
      DEVELOPMENT     DEPARTMENT,
      GOVERNMENT     OF   MADHYA
      PRADESH VALLABH     BHAWAN
      BHOPAL.

2.    MUNICIPAL      CORPORATION
      GWALIOR     THROUGH      ITS
      COMMISSIONER,     MUNICIPAL
      CORPORATION, CITY CENTER
      GWALIOR, MADHYA PRADESH.

3.    MAHENDRA AGRAWAL BUILDING
      OFFICER,        MUNICIPAL
                                            2

       CORPORATION         GWALIOR,
       MADHYA PRADESH.
4.     TOWN AND COUNTRY PLANNING
       OFFICER    GWALIOR,     GDA
       BHAWAN, RAVI NAGAR, GWALIOR

5.     SMT. SEEMA BASHISTH W/O SHRI
       MANMOHAN KANT SAMADHIYA
       R/O PLOT NO.139 MAYUR NAGAR,
       GWALIOR, MADHYA PRADESH.

6.     MANMOHAN KANT SAMADHIYA
       S/O SHRI P.D. SAMADHIYA R/O
       PLOT NO.139 MAYUR NAGAR,
       GWALIOR MADHYA PRADESH.
                                                           ........RESPONDENTS

        (SHRI SANJAY KUMAR SHARMA - GOVERNMENT
ADVOCATE FOR STATE AND SHRI VIVEK JAIN WITH SHRI
SARVESH KUMAR SHARMA - ADVOCATE FOR RESPONDENTS
NO.5 AND 6)
----------------------------------------------------------------------------------------

       This petition coming on for hearing this day, the Court passed the

following:

                                      ORDER

This petition under Article 226 of the Constitution of India has been filed seeking following reliefs :

i) The permissions Annexure P/1 and P/2 granted by respondent no. 3 and 4 may kindly be set aside with regard to commercial construction.

ii) The respondent authorities may kindly be directed to consider the representation annexure P/1 filed by petitioner and decided the same in accordance with law by a speaking order.

iii) The respondents authorities may kindly be directed to

initiate proceedings against the officer concerned who have not discharging their duties as assigned to them under the law.

iv) The respondents 1 to 4 may kindly be further directed to take action against the respondents 5 to 6 and may kindly be directed to stop illegal demolition forthwith which is contrary to permission granted by the Municipal Corporation.

v) Any other relief which this Hon'ble Court deem fit in the facts and circumstances of the case may kindly be granted to the petitioner.

vi) cost of the petition may kindly be awarded;

2. It is submitted by the counsel for the petitioner that Mayur Nagar 2B-3B Scheme Gandhi Road Zone/Ward 10/22 is a residential colony and the respondent No.6 is constructing a hotel, which is just adjoining to the house of the petitioner. It is submitted that no commercial activity can be permitted in a residential area and thus, the respondents must not only stop the further construction, but should demolish the construction raised by the respondents No.5 and 6 and should also set aside the building permission.

3. Heard the learned counsel for the petitioner.

4. The petitioner has filed a copy of building permission, which has been granted in favour of the respondents No.5 and 6. It is clear from the building permission that building FARs (Annexure P/6 and 7) have been sanctioned. Thus, it is clear that even according to the building permission, the respondents No.5 and 6 have been permitted to raise commercial building also. Thus, the contention of the petitioner that Mayur Nagar is a residential colony is prima facie not substantiated by any document. The petitioner has not filed any document to show that the area is declared as residential area. This Court in the case of Jaya Wakankar Vs. State of M.P. and Others passed on 26/07/2022 in

W.P.No.16807/2022 has held as under:-

4. The basic contention of the petitioner is that in a residential area the private respondents are carrying out their commercial activities. It is not out of place to mention here that except mentioning that the commercial activities are being carried out in a residential area, no document has been filed to show that the area in question is a residential area only. Section 15 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (in short "Adhiniyam, 1973") prescribes existing land use maps. Section 16 of the Adhiniyam, 1973 prescribes freezing of land use, on publication of the existing land use map under Section 15 of the Adhiniyam, 1973, no person shall be entitled to make change the use of any land or carry out any development of land for any purposes other than that indicated in the existing land use map without the permission in writing of the Director. Section 17 of the Adhiniyam, 1973 prescribes making of plan and shall indicate broadly the land use proposed in the planning area, allocate broadly areas or zones of land for residential, industrial, commercial or agricultural purpose. Section 18 of the Adhiniyam, 1973 prescribes publication of draft development plan and Section 19 of the Adhiniyam, 1973 prescribes sanction of development plans. Chapter 5 of the Adhiniyam, 1973 deals with specific power of State Government to control development and use of land. Section 26 of the Adhiniyam, 1973 prescribes prohibition of development without permission. It is not the case of the petitioner that under the Master Plan the area in which she is residing is a residential area and no commercial activity can be carried out. Furthermore, the Division Bench of this Court in the case of S.L. Chhajed and others Vs. State of M.P. and others by order dated 21/7/2015 passed in Writ Petition No.2500/2006 has held as under:-

"10 : The other aspect is that every construction has to be done in terms of the provisions of M.P. Municipal Corporation Act, 1956. No building can be erected within the Municipal area without the building permission granted by the Corporation. If any permission is granted and if it is alleged that such grant of permission was not just and proper, remedy of making complaint in the matter of grant of building sanction is already provided in the Act. Even the State Government can be approached under the provisions of Section 299-A of the Act of 1956 in the said matter and after conducting enquiry as is deemed necessary, the State Government is required to pass appropriate orders. Even for that reason, exercise of power under Article 226 of the Constitution of India by way of Public Interest Litigation is not warranted, in the first instance.

11 : Learned counsel for the petitioners has heavily placed reliance on the case of R.K.Mital and others Vs. State of Uttar Pradesh and others [(2012) 2 SCC 232] and contends that in terms of the law laid down by the Apex Court such an act of the respondents was illegal and in such a case, the writ is required to be issued to the officials of respondents to take action against the private respondents. The case before the Apex Court was entirely different. There was a specific complaint of lack of adoption of uniform application of law which had resulted in violation of law by several authorities. Pointing out similarities resulting in failure to maintain the standard, the Apex Court rendered that decision. It held that once the land is earmarked for residential use in the master plan, it cannot be used for any other purpose. This decision will be of no avail in the facts of the present case. For, no material is placed on record to show that in the

master plan, the particular area where the disputed buildings are erected has been earmarked as exclusively residential area. Secondly, there is specific provision of grant of permission for change of land use under the Act and it is the case of respondents that they have erected the building on the subject land after getting appropriate sanction from the competent authority. It appears that there was no occasion for the Authorities to enquire in the matter of complaints in that respect, unlike in the case before the Apex Court. Therefore, in our opinion, the petitioners will not get any support from the said decision in R.K. Mittal and others (supra), which is distinguishable.

12 : Yet, another aspect is that the petitioners have relied on certain representations which according to them have been made before the Authorities regarding the complaint. In one of the representation, it is found that one Arera Colony Vikas Rahawasi Samiti has filed a representation. In one of the writ petition, it was found that such type of Samiti had no locus to make complaint in respect of land use or even in the matter of development of the area. This Court in Writ Petition No.12/2007 (E-2 Rahawasi Sudhar Samiti, Bhopal and others Vs. The State of M.P. and others) has categorically held that such a complaint made by the Committee cannot be said to be a real Public Interest Litigation. Relying on the case of State of Uttaranchal Vs. Balwant Singh Chaufal [(2010) 3 SCC 402] and the principles underlying in the said decision of the Apex Court for testing whether a real Public Interest Litigation has been brought to the Court or not, this Court has restated the principles laid down by the Apex Court in para 10 of the said judgment, which reads thus :

"(1) The courts must encourage genuine

and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.

(2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives.

(3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L.

(4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.

(5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions. (7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation. (8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous

considerations."

13: Keeping in mind these principles, if we test the allegations made by the petitioners, as has been analysed herein above, in absence of any documentary proof in respect of allegations rather the details in respect of those allegations in pleadings, it would be clear that all such allegations of the petitioners are unwarranted and not sustainable to make out a case for issuing a writ as claimed, that too in a Public Interest Litigation."

5. Merely because some activities are causing difficulty to the petitioner is not sufficient to restrain the private respondents no.5 and 6 to carry out those activities.

5. The petitioner has not filed the copy of master plan to show that the area in question has been declared as residential area and no commercial activity can be carried out. Except making a vague submission that the area in question is a residential area, nothing has been placed on record to substantiate the said submission. Furthermore, since the respondents have granted building permission for raising commercial building also clearly indicates that the submission that the area in question is exclusively reserved for residential purpose may not be correct.

6. It is next contended by the counsel for the petitioner that the respondents No.5 and 6 in reply to the show cause notice issued by the respondents have admitted that they have carried out some additional construction work and they are ready for compounding and thus, it is clear that an additional construction has been raised which is required to be demolished. However, he fairly conceded that the petitioner has an efficacious remedy under Section 307(5) of M.P. Municipal Corporation

Act for removal of the illegal construction.

7. Since the petitioner has an alternative and efficacious remedy, no case is made out for interfering in the matter. The petition fails and is hereby dismissed. However, a liberty is granted to the petitioner that if he so desires, then he can approach the Court of competent jurisdiction under Section 307(5) of M.P. Municipal Corporation Act for redressal of his grievance.

(G.S. AHLUWALIA) JUDGE (alok)

ALOK KUMAR 2022.10.17 10:38:59 +05'30'