Sharad Agnihotri vs Municipal Corporation Bhopal
2023 Latest Caselaw 1455 MP

                                1


     IN THE HIGH COURT OF MADHYA PRADESH
                        AT JABALPUR
                            BEFORE
          HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                ON THE 25TH OF JANUARY, 2023
                 WRIT PETITION NO. 11786/2022

BETWEEN:-

1.   SHARAD AGNIHOTRI, S/O LATE P.N.
     AGNIHOTRI, AGED ABOUT 68 YEARS,
     OCCUPATION: AGRICULTURIST, ADDRESS:
     E/4 327, ARERA COLONY, BHOPAL (M.P.).

2.   VASANT AGNIHOTRI, S/O LATE P.N.
     AGNIHOTRI, AGED ABOUT 70 YEARS,
     OCCUPATION: AGRICULTURIST, ADDRESS:
     E/4 327, ARERA COLONY, BHOPAL (M.P.).

3.   DEEPA AGNIHOTRI, W/O LATE HEMANT
     AGNIHOTRI, AGED ABOUT 67 YEARS,
     OCCUPATION : HOME MAKER, R/O E/4 327,
     ARERA COLONY, BHOPAL (M.P.).

4.   SANDEEP AGNIHOTRI, S/O LATE HEMANT
     AGNIHOTRI, AGED ABOUT 41 YEARS, R/O
     E/4 327, ARERA COLONY, BHOPAL (M.P.).

5.   TANUSHREE PALAN, W/O SOHAIL PALAN,
     AGED ABOUT 36 YEARS, R/O E/4 327, ARERA
     COLONY, BHOPAL (M.P.).

                                                ....PETITIONERS

(BY SHRI AJAY AGUPA - SENIOR ADVOCATE - ASSISTED BY
MISS SAKSHI PAWAR - ADVOCATE)

AND

1.   MUNICIPAL   CORPORATION     BHOPAL,
     THROUGH ITS COMMISSIONER, OFFICE AT
     HARSHWARDHAN      COMNPLEX,   MATA
     MANDIR, BHOPAL (M.P.).
                                                                      2

2.       CITY      PLANNER,       MUNICIPAL
         CORPORATION,                BHOPAL,
         HARSHWARDHAN       COMPLEX,   MATA
         MANDIR, BHOPAL (M.P.).

                                                                                                         .....RESPONDENTS
(BY SHRI R.G. MAHAJAN - ADVOCATE)
................................................................................................................................................
Reserved on : 19.12.2022
Pronounced on : 25.01.2023
           This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:


                                                                    ORDER

Petitioners have filed this petition under Article 226 of the Constitution of India claiming following relief:

"(i) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction thereby setting aside the impugned notice/letter bearing Building License Department/Book No. 94/No. 50 dated 08.12.2020 (Annexure P/4) as being illegal and perverse.

(ii) To hold and direct that the building has been constructed as per the sanctioned map/plan.

(iii) Any other writ, direction or order which this Hon'ble Court may deem fit and proper in fact and circumstances of the case may please also be issued in favour of the petitioner together with awarding cost of proceedings."

2. Petitioners are challenging the notice/letter dated 08.12.2020 (Annexure P/4) mainly on the ground that the same is illegal not only on facts but also on law because they have not violated any rule or regulation while raising construction and the said construction is purely

in accordance with the sanction granted by the respondents-authority. Therefore, the impugned notice/letter dated 08.12.2020 is not only liable to be quashed but the respondents are also required to be directed not to create any hurdle in the construction which is being raised by the petitioners.

3. Looking to the controversy involved in the case and to answer the rival submissions made by the parties, it is required to mention the facts of the case in nutshell, which are as under:

The petitioners claiming themselves to be the owners of the property situates at E4/147, Arera Colony, Bhopal. After completing all the requisite formalities, the petitioners applied in the prescribed format for construction of the building on the said land. Vide letter dated 05.02.2019 (Annexure P/3) permission for construction of building was granted in favour of the petitioners and a map was also sanctioned/approved by the respondents on the same date. Thereafter, petitioners awarded the contract to one M/s Swapnil Real Estate for constructing the building as per the sanctioned map dated 05.02.2019, however the respondents issued a notice on 08.12.2020 (Annexure P/4) in the name of M/s Swapnil Real Estate under Section 302 of the M.P. Municipal Corporation Act, 1956 (Hereinafter referred to as the "Act of 1956") alleging that while carrying out construction the petitioners have violated the building permission conditions and hence they are required to submit their explanation in that regard and it was also directed to stop the construction work and submit all the relevant documents relating to the building within 08 days, failing which further action would be taken in accordance with law.

4. The petitioners submitted all the relevant documents including the building permission in the office of respondents alongwith a detailed

reply on 11.12.2020 (Annexure P/6). The petitioners have also taken a stand that after depositing the requisite fee, sanction was granted and the construction was started almost two years back, but no objection was raised by the respondents at the time of beginning of the construction work and when the construction work is at the verge of completion, they have issued the impugned notice directing them to hold the construction work, resulting increase of cost of construction. According to the petitioners, the respondent-Corporation is creating obstacle deliberately just to harass them whereas nothing illegal is being done by them and the construction is being raised strictly adhering to the specification for which permission has been granted.

5. Reply has been filed by the respondents saying that in the sanctioned map there is a clause specifying that the petitioners are required to leave 4.50 meters open space all around the building. It is also stated in the reply that since the land use of the plot is commercial, therefore provisions of Rule 57 of the Madhya Pradesh Bhumi Vikas Niyam, 1912 (For short 'Niyam, 2012) are applicable. According to the respondents, under Rule 57, it is provided that in any construction of commercial nature the open space around the building shall not be less than 4.5 meters and therefore the construction raised by the petitioners is illegal as they have not left the margin of 4.5 meters all around the building. It is also stated in the reply that the petitioners themselves have given undertaking in their representation that they will remove all the unwanted structure and therefore they are under obligation to do so and according to the respondents the petitioners in another representation have further undertaken that they are ready to remove 4.5 meters construction of east front of the building. The respondents in their reply have also taken a stand that Rule 57 of the Niyam, 2012 very clearly

provides that if a construction is of commercial nature then it is obligatory for the owner to leave 4.5 meters open space on front side.

6. The petitioners have filed rejoinder to the reply filed by the respondents stating therein that as per Condition No. 1 of the building permission dated 05.02.2019, which the respondents have annexed alongwith the reply as Annexure R 2/1, an MOS (Marginal Open Space) of 4.50 meters has to be left from both the side of roads, but as per the respondents own saying, Condition No. 4 of the building permission provides that the sanctioned map shall be read alongwith building permission and a conjoint perusal of sanctioned map and the building permission makes it clear that MOS (Marginal Open Space) can be left on any side of the building and as per the conditions mentioned in the building permission and the sanctioned map, Zero MOS is said to be left along the sides of the building in question. According to the petitioners, now the respondents are compelling them to leave 4.5 meters MOS even in the front side. As per the petitioners, the respondents have also imposed Karmkar Shulk on the petitioners based on the total constructed area of 620.71 Sq. Mt. leaving Zero MOS as per the map sanctioned by the respondents. In the rejoinder it is stated that so far as undertaking given by the petitioners in the representation is concerned that undertaking is for the situation when it is found that any construction raised by the petitioners is illegal. It is also clarified by the petitioners that as per the lay out sanctioned by the TNPC, the front of the building is in the east side. It is also contended in the rejoinder that while granting building permission the respondents exercised their discretion and sanctioned the map with Zero MOS as per Rule 57 of the Niyam, 2012 and since the building is situated in the residential area therefore as per Rule 57(d) now the respondents cannot compel the petitioners to

leave 4.5 meters space all around the building.

7. Learned counsel for the petitioners has also placed reliance upon an order passed by this Court in WP No. 9248/2021 - M/s Jai Bhole Real Estate vs. Municipal Corporation, Bhopal and others decided on 13.12.2021 in which the same issue was involved and the writ petition was allowed by this Court and as such the petitioners are also seeking that the similar direction be issued in their favour.

8. Learned counsel for the petitioners has submitted that this Court in the case of M/s Jai Bhole Real Estate (Supra) under the similar circumstances considered this aspect. In the said case also the respondents sanctioned the map and the construction was started as per the said sanctioned map but in the mid of the construction, the authority issued notice to the petitioners asking their explanation saying that the construction was being raised in violation of approved map, but after perusal of record the Court found that in the map it was clearly mentioned that in the front side of the construction there would be Zero MOS and accordingly allowed the petition, setting aside the impugned notice. Here in this case also the position is same. The license for construction was granted as per the sanctioned map which contains specification under which the building has to be constructed. The built up area is specified 641.34 sq.mt. with Zero MOS from the front side. However, the petitioners are ready to leave 4.50 meters open space on both sides of the road from the building, but according to them, it would not be proper and would be illegal on the part of the respondents to ask the petitioners to leave 4.5 meters MOS on the front side of the building because according to the petitioners it would be contrary to the sanctioned map and as such the same cannot be asked by the respondents and on the basis of that, the construction cannot be held up.

9. Considering the submissions made by the learned counsel for the parties and after perusal of record, it is apparent that the sanctioned map i.e. Annexure P/3 clearly reveals that the sanction has been granted to the petitioners for total permissible built-up area 641.34 meters, ground coverage area 167.67 sq.mt., margin area as per the map 0.1 sq.mt. front side and Zero in the rear side. However, the sanctioned map also contains condition that from both sides of the road of the building it is required to leave 4.5 meters of MOS. This Court relying upon the fact situation existing in the case of M/s Jai Bhole Real Estate (Supra) has observed and held as under:-

"8. Learned counsel for the respondents has drawn attention of this Court towards additional reply filed by him and submitted that Annexure R/2 filed alongwith the main reply clearly indicates that in front of side heading 'Remarks' it is clearly mentioned that the proposal of the petitioner was approved on the basis of scrutiny done by DCR, recommendation of Sub Engineer, DM, AE with conditions that the MOS (Marginal Open Space) on road sides shall be 4.50 meters, basement to the extent of ground coverage, Bldg ht 12 max., turning radios to be provided as per standards, but, the petitioner has not violated the said conditions, therefore, the impugned notice has rightly been issued to him.

9. In rebuttal to the above submission, learned counsel for the petitioner submits that the aforesaid remark is contrary to the sanctioned map and also to the permission granted for construction of the building and, therefore, the action taken by the respondents by issuing notice under Section 302 of the Act of 1956 is illegal and construction work cannot be stopped by the respondents in such an illegal manner, which is almost at the verge of completion. In support of his contention, learned counsel for the petitioner has placed reliance in the case of Nagar Palika Nigam, Gwalior vs. Gopal Krishna reported in 2006 (2) MPLJ 515 in which the division Bench has very categorically observed that if permission is granted under Section 299 of the Act of 1956 for construction of a building, cancellation of such permission after

commencement of the construction is not permissible. In the said judgment, the division Bench in paragraphs 10 to 12 has observed as under:-

"10. Learned counsel for the appellant submitted that construction work was commenced by the plaintiff after service of notice. For this purpose, he invited attention of the Court to para 9 of the statement of PW-1 Gopal Krishna, who stated that on 10-12 days were required for construction of the pillars. This statement is not sufficient to hold that construction work was commenced after 29.07.1991. The defendant had not asked any question in furtherance of the reply of the plaintiff in para 9 that in 10-12 days work was done after 29.07.1991. The preponderance of the probabilities is that the basement admeasuring 30"8"x36" cannot be constructed within a period of 15 days. Considering this fact and the oral evidence on record the Court found that the work commenced prior to 29.07.1991. The Court has also found that the defendant has not produced any evidence to show that the sanction was granted contrary to the development plan or master- plan. The defendant has not produced any document to that effect. Thus, the Court below after relying on statement of witnesses and Commissioner's report has found that construction work commenced before 29.07.1991 i.e. before cancellation order was passed.

11. The Apex Court in the case of madhusudan Das vs. Narayani Bai and others, 1983 MPLJ (SC) 313 = AIR 1983 SC 114 has laid down that in an appeal against a trial Court decree, when the Appellate Court considers an issue turning on oral evidence, it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the Appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial

Court or there is sufficient balance of improbability to displace its opinion as to where the credibility lies. In the present case, we find that there is every probability considering the size of the construction that the work must have commenced before 29.07.1991. Hence, we do not find any reason to interfere in the findings arrived at by the Court below.

12. In the result, this appeal has no merit and is hereby dismissed. The judgment and decree of the trial Court is confirmed."

10. Considering the arguments advanced by the learned counsel for the parties and on perusal of record, I do not find any such condition in any of the documents filed by the parties that while sanctioning the map and issuing the certificate/license of construction the petitioner was under obligation to leave 4.5 meters space in the front side of the building being constructed and would also not construct any basement as per the ground floor coverage, therefore, in my opinion, the impugned notice is illegal and the petitioner cannot be restrained from raising construction as per the remark contained in the said notice."

10. Here in the present case also the sanctioned map contains specification that is also filed by the petitioner alongwith the rejoinder showing MOS and as per the said document the building permission was granted to the petitioners on 5th February, 2019 alongwith MOS in the following manner:

Front side - 0.1 meter Rear side - 0 meter Left side 0.1 meter Right side 0.01 meter Coverage 167.67 meters

11. Learned counsel for the petitioners has submitted that the construction has been started as per this document and now at this stage when the construction is at the verge of completion respondents cannot restrain the petitioners from raising construction work saying that they

are required to leave 4.5 meters MOS on both sides of the road from the building. It is specifically submitted by the petitioners that the letter Annexure R-2/5 was never served upon them. The building permission granted to the petitioners has not been denied by the respondents in their reply and they have also filed document granting license for raising construction with a specification containing MOS and now that document cannot be denied by them.

12. Thus, after examining the order passed by this Court in the case of M/s Jai Bhole Real Estate (Supra) and the facts and circumstances and also the record of the case at hand, I find that the present case is also almost similar to the said case. Accordingly, in view of the discussion made hereinabove and in the light of the order passed in the case of M/s Jai Bhole Real Estate ((Supra), this petition deserves to be and is hereby allowed. The impugned notice/letter dated 08.12.2020 (Annexure P/4) is hereby held illegal and set aside. It is directed that the petitioners cannot be compelled by the respondents to raise construction contrary to the permission/sanction granted for raising construction and asking them to raise construction as per the requirement of the respondents, but the petitioners are under obligation to raise construction as per the sanction/permission granted by the respondents. It is made clear that if any construction is raised by the petitioners contrary to the sanctioned map or the conditions contained in the building permission certificate, the same shall be at the cost of the petitioners and appropriate action, if so requires, can be taken by the respondents.

13. With the aforesaid, this petition is allowed. However, there shall be no order as to costs.

(SANJAY DWIVEDI) Raghvendra JUDGE

RAGHVENDRA SHARAN SHUKLA 2023.01.25 19:14:07 +05'30'