Madhya Pradesh High Court
A And A Real Estate Pvt. Ltd. vs The State Of Madhya Pradesh on 5 October, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 5 th OF OCTOBER, 2023
WRIT PETITION No. 4903 of 2021
BETWEEN:-
A AND A REAL ESTATE PVT. LTD. THR. ITS DIRECTOR
MOHAMMAD SHAMEEM S/O MOHAMMAD YASEEN
AGED 48 OCC. SELF EMPLOYED PENT HOUSE 7 TH
FLOOR BLOCK-F REGALIA HEIGHTS AHMADABAD
PALACE ROAD KOH-E FIZA BHOPAL MP (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SANJAY AGRAWAL - SR. ADVOCATE WITH MS. NEERJA
AGRAWAL - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THR.
PRINCIPAL SECRETARY URBAN
ADMINISTRATION DEPT. MANTRALAYA
VALLABH BHAWAN BHOPAL MP (MADHYA
PRADESH)
2. MUNICIPAL CORPORATION BHOPAL THROUGH
C O M M I S S I O N E R DISTT.BHOPAL (MADHYA
PRADESH)
3. CHIEF CITY DIRECTOR MUNICIPAL
CORPORATION BHOPAL BUILDING PERMISSION
BRANCH MUNICIPAL CORPORATION BHOPAL
(MADHYA PRADESH)
4. ASSISTANT ENGINEER MUNICIPAL
CORPORATION BHOPAL BUILDING PERMISSION
BRANCH MUNICIPAL CORPORATION BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT No. 1 BY SHRI SUBODH KATHAR - GOVERNMENT
ADVOCATE)
(RESPONDENT No. 2 TO 4 BY SHRI SANJAY K. AGRAWAL AND SHRI
SARTHAK NEMA - ADVOCATE)
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 09-10-2023
12:33:27
2
This petition coming on for final hearing this day, the court passed the
following:
ORDER
This writ petition is filed by a Builder/petitioner seeking directions that
impugned notices dated 16.02.2021 be quashed and High Court be pleased to
set-aside the rejection of the application of the petitioner for renewal of the
building permission dated 22.02.2021 and direct the respondents to
renew/restore the building permission of the petitioner in accordance of Rule 23
and/or Rule 25 of the Bhumi Vikash Rules, 2012. It is also prayed that
respondent No.3 be directed to take prompt decision in regard to petitioner's
request for renewal of building permission contained in Annexure P-5 and
respondent authorities be directed to decide petitioner's representations dated
24.12.2019, 12.08.2020, 17.09.2020 and 10.11.2020.
2. Shri Sanjay Agrawal, learned Senior Advocate for the petitioner
submits that the show-cause notice dated 16.02.2021 has failed to take into
consideration the fact that though there may be minor changes in the sanction
plan but they are in conformity with the provisions contained in Section 308A
of the Madhya Pradesh Municipal Corporation Act, 1956. It is submitted that
permission was given to construct 07th Floor where a Pent House has been
erected as is evident from Annexure P-17, which is a note-sheet written by the
officials of the Municipal Corporation, Bhopal.
3. Shri Sanjay Agrawal placing reliance on the pleadings in the rejoinder
in para 14 & 15 submits that construction is within the limits of the FAR and
though it is admitted that one Floor meant for parking is not constructed yet the
space for parking is sufficient in as much as against parking requirement for 69
cars, petitioner has created parking space for 106 cars i.e. 53 cars on each
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 09-10-2023
12:33:27
floor. It is also submitted that on 03.02.2022 by paying the compounding fee of
Rs.2,00,000/- revised map has been given to the Municpal Corporation and they
are duty bound to examine the same and take action on it.
4. Shri Sanjay K. Arawal with Shri Sarthak Nema in their turn submits
that the issue is that what was the sanction and whether deviation of the sanction
plan is permissible or not. It is submitted that in place of sanctioned three
floors for parking, petitioner has admitted constructed only two floors. In place
of 06 floors sanctioned for construction of residential accommodation
petitioner has erected 07th floor which is in violation of the building permission
contained in Annexure P-21.
5. Reliance is placed on the Judgment of Hon'ble Supreme Court in the
case of Dharampal Satyapal Ltd. Vs. Dy. Commissioner of Central Excise,
Guahati & Ors. (2015)8 SCC 519 and placing reliance on para 38 & 39 it is
submitted that once the proposed revised map is beyond the scope of Section
308A and no compounding is permissible, then insistence of Shri Sanjay
Agrawal, learned Senior Advocate to get his representation for compounding
decided is a useless formality. It is submitted that in para 39 of the aforesaid
judgment Hon'ble the Supreme Court has held as under:
"We have highlighted the jurisprudential basis of adhering
to the principles of natural justice which are grounded on
the doctrine of procedural fairness, accuracy of outcome
leading to general social goals, etc. Nevertheless, there
may be situations wherein for some reason - perhaps
because the evidence against the individual is thought to
be utterly compelling - it is felt that a fair hearing "would
make no difference" - meaning that a hearing would not
change the ultimate conclusion reached by the decision-
maker - then no legal duty to supply a hearing arises. Such
an approach was endorsed by Lord Wilberforce in
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Signed by: ASHWANI
PRAJAPATI
Signing time: 09-10-2023
12:33:27
Malloch v. Aberdeen Corporation [(1971)2 All E.R. 1278
(HL)],
"breach of procedure...cannot give (rise to) a remedy in
the courts, unless behind it there is something of
substance which has been lost by the failure. The court
does not act in vain".
6. Thus, it is submitted that petitioner's insistence to decide
compounding application will be an exercise in futility and will not yield
anything especially when specific stand is taken in the return that compounding
of the acts of the petitioner is not permissible.
7. Reliance is placed on the judgment of Supreme Court in the case of
Royal Paradise Hotel (P) Ltd. Vs. State of Haryana & Ors. (2006)7SCC
597 wherein relying on para 8 & 9, it is submitted that "No authority
administering municipal laws and other laws like the Act involved here, can
encourage such violations. Even otherwise, compounding is not to be done
when the violations are deliberate, designed, reckless or motivated. Marginal or
insignificant accidental violations unconsciously made after trying to comply
with all the requirements of the law can alone qualify for regularization which is
not the rule, but a rare exception. The authorities and the High Court were hence
right in refusing the request of the appellant."
8. Similarly reliance is placed on the judgment of Supreme Court in the
case of Deepak Kumar Mukherjee Vs. Kolkata Municipal Corporation
(2013)5 SCC 336 wherein placing reliance on para 8, 9, 20, 21, 22, 26 & 27 it
is pointed out that once an illegality has been committed then it is necessary that
such illegal structure being in violation of the Municipal Laws will vitiate of
concept of planned development and such illegal and unauthorized construction
needs to be removed as the concept of fundamental or constitutional right is not
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Signed by: ASHWANI
PRAJAPATI
Signing time: 09-10-2023
12:33:27
restricted to Jhuggi Jhopris belonging to the poor and disadvantaged section of
the society but is also applicable to the economically effluent people.
9. In the case of Deepak Kumar Mukherjee (Supra) Hon'ble the
Supreme Court has noted that "that a person, who erects any structure or
executes any work is not entitled to deviate from the sanctioned plan. Rule
25(2) which contains a non-obstante clause and provides for sanction of
revised plan to be submitted by the person engaged in erection of building or
execution of work lays down that if during erection or execution of work, any
internal alterations or external additions which do not violate the provisions of
the Act or the Rules is made, the Municipal Commissioner can, on an
application made in that behalf sanction the revise plan."
10. In the present case, facts are different. It is now admitted though
indirectly and tacitly by the counsel for the petitioner that in place of three
parking floors only two parking floors have been constructed. Reading from the
communication contained in Annexure P-17, though it is sought to be
emphasized that subsequently Pent House was sanctioned on the 07th Floor but
the language of Annexure P-17, indicates otherwise.
11. For the convenience of all, relevant portion of Annexure P-17, is
quoted hereunder:
"कृपया प के अवलोकन करने का क कर। जो मे सस ए ए ड ए रयल टेट ा० ली० मैने जंग
करण ० 246 िदनांक 17.05.2016 म 1/3 पट हाउस िदए जाने स ब धी आवेदन तुत िकया गया
है। अि म कायवाही एवं आदेशाथ तुत।
ए /एम
सही/-
आवेदक ारा तुत आवेदन का अवलोकन हो जसमे आवेदक ारा िनवेदन िकया है क मानिच
म उसके ारा पट हाउस 1/3 तािवत िकया गया था जो मानिच के elevation म िदख रहा है िक तु
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 09-10-2023
12:33:27
उसका े फल का उ ेख नह है। आदेश हो तो मानिच म 1/3 पट हाउस स थ लोर के िब ट उप
ए रया का माक िकया जाने के आदेश पा रत करने का क कर।
12. Thus, a plane reading of Annexure P-17 leaves no iota of doubt
that Pent House was sanctioned on the 06th floor permitting 1/3rd of the floor
of the 6th floor to be marked as an area under Pent House. There is no separate
sanction of Pent House on the 07th Floor.
13. The aforesaid fact gets corroborated from the sanctioned map
Annexure P-21, which makes a clear mention of the fact that Block-1(A)
consists of residential area of 610.21 Sq. Meters, Block - 1(B) & (C) consists
of 4453.82 Sq. Meters, Block - 1(E) & Block - 2(E) each consists of 3041.76
Sq. Meters. Thus, totaling 11147.55 Sq. Meters. The net FAR covered is
mentioned as 1.2453 against a sanctioned FAR of 1.25, thus, there is no
evidence that Pent House was sanctioned on the 07th Floor. There is no
material on record to permit the petitioner to convert one of the Floors, meant
for parking for any other use.
14. Thus, when this aspect is examined in the light of the judgment of
Supreme Court in the case of Deepak Kumar Mukherjee (supra) and also in
the light of another judgment of Supreme Court in the case of Isha Ekta
Apartment Co-operative Housing Society Ltd. & Ors. Vs. Municipal
Corporation of Mumbai & Ors. (2013)5SCC 357, there is no iota of doubt
that violation made by the petitioner/builder from the sanctioned map is neither
compoundable nor there is any provisions for compounding such deliberate
violation as has been noted by the Supreme Court in the case of Royal
Paradise Hotels (P) Ltd. (supra) wherein it is noted that compounding is not
to be done when the violations are deliberate, designed, reckless or motivated.
When this ratio of the judgments is taken into consideration, then I do not find
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 09-10-2023
12:33:27
any illegality in the impugned show-cause notice asking the petitioner to remove
his illegal construction.
15. Petitioner's reliance on Rule 23 & 25 of the Bhumi Vikash Rules,
2012 also appears to be misplaced. Rule 23 deals with duration of sanction, it
provides that in case of development permission under Section 30 of M.P.
Nagar Tatha Gram Nivesh Adhiniyam , 1973 the sanction once accorded shall
remain valid up to three years. this permission is in regard to sanctioned lay out.
It has nothing to do with the building permission. Similarly Rule 25 deals with
revocation of permission. It only provides that before revocation of permission,
person who has been given permission should be given an opportunity of being
heard.
16. In the present case, petitioner was throughout aware of this fact that
he is deliberately violating the sanctioned plan and therefore, in the light of the
decision of Supreme Court in the case of Royal Paradise Hotels (P) Ltd.
(supra) even that opportunity was not required for the deliberate acts of
violation on the act of the petitioner. Therefore, when examined, then the
petition is baseless. Such deliberate illegalities cannot be regularized by the
Court without shaking the faith of citizens in the machinery of town planning
and administration of Municipal Laws.
17. Therefore, the petition being devoid of merits deserve to be
dismissed and is accordingly dismissed.
(VIVEK AGARWAL)
JUDGE
Amitabh
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 09-10-2023
12:33:27
