Madhya Pradesh High Court
Syed Muzaffar Ali (Badshah Khan) vs Municipal Corporation Bhopal on 15 February, 2024
Author: Sheel Nagu
Bench: Sheel Nagu
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE VINAY SARAF
th
ON THE 15 OF FEBRUARY, 2024
WRIT PETITION No. 8866 of 2014
BETWEEN:-
SYED MUZAFFAR ALI (BADSHAH KHAN)
S/O LATE MAZHAR ALI, AGED ABOUT 58
YEARS, R/O 203, TOLWALI MASJID,
SHAHAPURA, BHOPAL (M.P.)
.....PETITIONER
(BY SMT SHOBHA MENON - SENIOR ADVOCATE WITH SHRI RAHUL
CHOUBEY - ADVOCATE)
AND
1. MUNICIPAL CORPORATION BHOPAL
THROUGH ITS COMMISSIONER, SADAR
MANZIL, BHOPAL (M.P.)
2. COMMISSIONER, BHOPAL DIVISION,
BHOPAL (M.P.)
3. STATE OF MADHYA PRADESH
THROUGH ITS SECRETARY,
DEPARTMENT OF LOCAL SELF
GOVERNMENT, GOVERNMENT OF
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M.P., VALLABH BHAWAN, BHOPAL
(M.P.)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI VIVEK CHOUDHARY- ADVOCATE, SHRI
ASHISH SHROTI - ADVOCATE & SHRI VIKRAM JOHRI - ADVOCATE AND
RESPONDENTS NO.2 & 3 BY SHRI G.P. SINGH - GOVERNMENT
ADVOCATE)
This petition coming on for orders this day, Justice Sheel Nagu
passed the following :
ORDER
1. Invoking writ jurisdiction of this Court under Article 226 of
Constitution of India, the petitioner assails order dated 03.06.2014 (Annexure
P/13) passed by Commissioner, Municipal Corporation, Bhopal (M.P.) in
compliance of final order dated 11.04.2014 passed in two PILs vide W.P.
No.6145/2002 (Choudhary Noor Jamal Vs. State of M.P. & others) and W.P.
No.15960/2012 (Mohammad Rafiq Khan Vs. Board of Revenue Gwalior and
others) whereby the co-ordinate Bench of this Court adjudicating the public
cause of preservation and resurrection of Siddique Hassan Tank in Bhopal
city, passed various directions of far reaching effect. The relevant extracts of
said order in PIL are reproduced below :
"12. To address that issue on hand, in our considered
opinion, the Corporation should be primarily
responsible. Inasmuch as, it is the bounden duty of
the Corporation to ensure that no unauthorized
construction is put up in any part of the City. The
provisions of the Corporation Act predicate that no
new construction can be started without prior
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permission of the Corporation. Thus, every
owner/occupant of the structure standing on the
entire site in question - be it falling within 8 Acres or
other 4 Acres as the case may be - must possess valid
building permission for construction of structure
occupied by him. If he is not in a position to produce
valid building permission in respect of structure
owned/occupied by him, it would necessarily follow
that the concerned structure is unauthorized. In that
event, it is the bounden duty of the Corporation to
remove that structure with utmost dispatch. It is
possible that the owners/occupants of the structure
may produce permission granted by the Corporation,
but the structure standing on the site may not
correspond to the area permitted by the Corporation.
Even in that case, the excess area constructed by
such owner/occupant will have to be treated as
unauthorized and proceeded with in accordance with
law by the Corporation forthwith.
14. We may note that the fact that a decree has been
passed by the Civil Court indicating that the
occupant is the owner of the land does not permit the
owner to put up any construction thereon without a
valid permission of the Corporation. Ownership of
land should not be mixed up with the issue of
structure being unauthorized, either by the
Corporation or the Execution Agency. During the
survey, the Corporation should insist for production
of a valid building permission from the occupants of
the structure and if he fails to do so, must proceed
against the structure after following due process.
This shall be done phase-wise.
15. During the course of hearing, it was pointed out
to us by the counsel for the Structure-
owners/occupants appearing in the companion
interim applications that in some of the cases the
occupants had submitted application for permission
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for construction, but since no response was received
within the statutory period, the concerned occupants
proceeded on the assumption that there was deemed
permission. Whether such a plea is available and can
be sustained, that matter will have to be examined by
the Commissioner on case to case basis as per Law.
16. If the Corporation decides to demolish the
structure, it must give at least ten days demolition
notice to the concerned occupant/owner. It will be
then open to them to apply for regularization, if the
Law permits. As a matter of fact, the
owners/occupants can invoke that remedy in
anticipation forthwith, if so advised. It is for the
Corporation to consider whether such regularization
may be permissible in law and including the extent to
which the structure can be regularized. That is a
matter to be answered by the Corporation on case to
case basis. That will have to be done expeditiously
and not later than two weeks from the receipt of such
application. In case, the application for
regularization is rejected, the Corporation will be
free to demolish the unauthorized structure after
giving ten days from the date of service of the
demolition order on the owner/occupant. Further, the
demolition notice must be given within ten days from
rejection of the regularization application.
18. As aforesaid, the ownership of land should not be
mixed up with the issue of removal of unauthorized
structures. Both these issues are mutually exclusive.
20. For the time being, we would assume that one
months time per acre may be more than sufficient to
complete the survey structure wise and for removal of
unauthorized structures on the site after following
due process. We, accordingly, give aggregate eight
months time to the Corporation with a hope that the
Corporation would complete the exercise phase-wise,
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by dividing it into segments and after doing survey,
must proceed against the concerned structures
contemporaneously if found to be unauthorized, by
following due process.
21. No Civil Court in Bhopal will entertain any
challenge to such action as the order of removal of
unauthorized structures in Tank area has been passed
in the Public Interest Litigation and the entire issue
in that regard is pending before us. If any person has
any grievance about the justness of the action of the
Corporation, can directly approach this Court in that
connection.
23. We further make it clear that if the Corporation
finds any difficulty or apprehends resistance from the
locals during the execution of demolition order, must
give atleast two days advance notice to the
Superintendent of Police, who, in turn, shall be
personally responsible to provide adequate logistical
support to the officials of the Corporation at the time
and place as desired by them to facilitate the
demolition of concerned unauthorized structures. The
Superintendent of Police, Bhopal, shall be personally
responsible for that.
24. Non-compliance of this order by any official of
the State or the Revenue Authorities including the
Corporation will be viewed seriously and may be
proceeded against for committing aggravated
contempt.
25. We are inclined to say this because this Court has
repeatedly directed the Corporation as back as from
February, 2005 to remove all the unauthorized
structures and clear the site from encroachments but
no tangible effort has been made by the Corporation
so far.
27. As regards Writ Petition No.15960/2012,
although the issue raised in this petition is somewhat
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different, but the matter has been tagged on account
of the order passed by the Revenue Authority
declining to mutate the land in favour of the
petitioner on the ground that the proceeding
pertaining to Siddique Hasan Tank are pending in
this Court being Writ Petition No.6145/2002. We
dispose of this petition with a direction to the
Revenue Authority to examine the claim of the
petitioner for mutation on its own merits in
accordance with law and being uninfluenced by the
pendency of Public Interest Litigation. Needless to
observe that the application filed by the petitioner
before the Revenue Authority will have to be
examined in the context of revenue laws as it is only
for mutation in respect of the land purportedly owned
and possessed by the petitioner. That inquiry has to
be made by the Revenue Authority. Accordingly, this
petition (W.P.No.15960/2012) is disposed of in terms
of this order."
(emphasis supplied)
1.1 Pertinently, Siddique Hassan Tank falls within Survey No.3280 (old)
and Survey No.160 (new).
1.2 The aforesaid PIL was though disposed of on 11.04.2014 but was listed
thereafter on various occasions for ensuring compliance of order passed on
11.04.2014.
1.3 The said PIL after 11.04.2014 was listed for compliance on various
occasions including 08.05.2014, when following order was passed :
"I.A. No.5934/2014 and I.A No.5874/2014.
Heard counsel for the parties.
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In terms of order dated 5.5.2014 the
Commissioner has appeared in person. He makes
statement that show cause notices have been
issued by him only in respect of structures
standing on Survey No.160, which is known as
Siddique Hasan Tank. He submits that if the
applicants have documentary evidence to
establish the fact that the structure in respect of
which notice has been issued by the Corporation
is not standing on Survey No.160 but some other
survey number and including Survey No.158, he
would consider that matter independently.
In our order dated 5th May, 2014, we have
made it amply clear that the issue pending before
this Court pertains to Survey No.160, which is
known as Siddique Hasan Tank. Assuming that
the noticee claims that the structure in respect of
which notice has been received by him/her is not
standing on Survey No.160 but some other survey
number, that does not mean that the Corporation
is not competent to inquire into the question
whether the said structure is authorised or
unauthorised. Thus, in respect of any structure,
which is unauthorised, the Corporation, in law, is
obliged to proceed by giving due opportunity to
all concerned. Hence, it is futile to argue that the
notices received by the applicants pertain to
structures standing on Survey No.158, which is
not the subject matter of the PIL.
Indeed, if the decision of the Commissioner is
adverse to the concerned noticee, he/she is free to
challenge the same by way of appropriate
proceedings, which will be proceeded in
accordance with law and if the unauthorised
structure is situated at Survey No.160, that
controversy will have to be dealt with in the
present public interest litigation and no other
Court in Bhopal by entertaining any suit in that
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behalf. That position has been made clear in the
earlier orders passed by this Court as the entire
issue regarding Siddique Hasan Tank is pending
consideration in the present PIL.
Our attention was invited to the fact that in
respect of some of the structures civil suit has
culminated with the decree and in some cases the
appeal proceedings are pending before this Court.
In those proceedings, status quo order is
operating in favour of the parties to the civil
proceedings. We make it clear that the said status
quo order cannot preclude the Corporation to
proceed against the structure in question if it is
"unauthorised" because that is the subject matter
of the present public interest litigation.
The issue to be dealt with in civil proceedings
between the parties is limited to the title in the
property. That does not mean that the
Corporation cannot take action in respect of the
structure if it is found to be unauthorised and
constructed without prior permission of the
Corporation, which is the mandate of the law.
Besides this, nothing more is required to be
observed today.
Applications IA No.5934/2014 and IA
No.5874/2014 filed by the third parties are
disposed of on the above terms.
Matter be now listed on 20.06.2014 under
caption "Directions".
Personal presence of Commissioner is
dispensed with for the time being till further
orders."
(emphasis supplied)
1.4 Ultimately, the said PIL was finally disposed of by order dated
01.04.2022 by recording that compliances have been made. The relevant
portion of this order is reproduced below :
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"Learned counsels appearing for both sides
submit that the subject matter of this petition has
since been considered in detailed and appropriate
orders have been passed in the orders dated
11.4.2014 and 8.5.2014. In pursuance to the same,
various actions have been initiated by the
respondents and appropriate petitions have been
filed by the concerned in order to protect their legal
rights. Therefore, so far as the public interest
litigation is concerned, we are of the view that the
same has served its purpose. We do not find any
reason to continue with this public interest litigation.
However, it is needless to state that all
actions that are taken or sought to be taken by the
respondents can very well be defended by the
petitioners of the connected petitions in appropriate
court. It is further pleaded that some of the persons
have already filed the writ petitions. If that be so, the
same would be considered, in accordance with law.
The present writ petition is disposed off by
making absolute the orders dated 11.4.2014. and
8.5.2014.
The security deposit said to have been
deposited in this Court, is directed to be released in
favour of the petitioner.
All pending interlocutory applications are
also disposed off.
Post all connected writ petitions before the
appropriate Court."
2. In deference of final order in PIL dated 11.04.2014, a show cause
notice dated 02.05.2014 (Annexure P/9) was issued to petitioner and several
other persons, who were found encroaching upon Siddique Hassan Tank by
making unlawful constructions without lawful building permission.
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2.1 In response, the petitioner filed reply to show cause, vide Annexure
P/12 dated 09.05.2014.
2.2 The impugned order dated 03.06.2014 (Annexure P/13) is issued by
assigning the following reasons :
(a) Despite issuance of notice dated 02.05.2014 and despite
publishing said notice in the newspaper on 09.05.2014, neither the
petitioner nor anyone appeared on behalf of petitioner to respond
to the notice.
(b) Thus, the Municipal Corporation was compelled to take ex
parte proceedings against the petitioner.
(c) Sub Engineer of Municipal Corporation conducted spot
inspection and submitted report dated 23.05.2014 inter alia
revealing that petitioner had made unauthorized construction over
Survey No.160 (reserved for Siddique Hassan Tank).
(d) A team headed by Tehsildar of the area concerned on
23.05.2014 conducted spot inspection and caused demarcation and
found that the unlawful construction made by petitioner was partly
encroaching Survey No.160 (reserved for Siddique Hassan Tank).
(e) Consequent thereupon, impugned order Annexure P/13
dated 03.06.2014 was passed directing petitioner to remove the
unlawful constructions.
3. Assailing the aforesaid impugned order Annexure P/13, the petitioner
has filed this petition on the following relevant facts and grounds :
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(i) The petitioner in his capacity as L.R. of the original
plaintiff Late Zahrul Hassan, is declared owner of the plot in
question to the exclusion of Municipal Corporation, Bhopal by
decree dated 30/31.03.1981 in Regular Civil Suit No.35-A/1980
qua the suit property within survey No.3274, 3284 to 3287. Decree
of permanent injunction is also granted restraining defendants,
Municipal Corporation and State, from interfering with the
possession of petitioner-plaintiff.
(ii) The aforesaid decree was not assailed by Municipal
Council/ Corporation, Bhopal.
(iii) Appeal preferred against the aforesaid decree by the State
vide F.A. No.162/1981 (State of M.P. Vs. Smt. Iqbalunnisha and
others) was dismissed by this Court on 26.06.1993 (Annexure P/4)
with no further challenge to the same.
(iv) Aggrieved by notice of demolition issued sometime in
1988-89, a Civil Suit No.203-A/89 is instituted by the petitioner
seeking permanent injunction against the Municipal Corporation,
Bhopal.
(v) On 11.03.1994, Civil Suit No.203-A/89 is dismissed by
holding that the period of deemed sanction as claimed by the
petitioner was 30 days and not 60 days.
(vi) The aforesaid order dated 11.03.1994 is assailed in
Regular Civil Appeal No.28-A/94.
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(vii) On 18.03.1994, Regular Civil Appeal No.28-A/94
preferred by the petitioner is allowed remanding the case to the
Trial Court directing to decide the issue afresh after affording
opportunity to the plaintiff/petitioner to adduce evidence on the
question of deemed permission period being 60 days or 30 days.
(viii) On 03.08.1994, Civil Suit No.203-A/89 was decreed in
favour of plaintiff/petitioner granting decree of permanent
injunction against the Municipal Corporation, Bhopal restraining it
from removing construction made by petitioner without following
the due process of law.
4. Per contra, learned counsel for respondent-Municipal Corporation,
Bhopal vide Return contends that 215 notices were issued to different
occupants, who had made unauthorized construction, out of which only 196
replies were received within the stipulated time. These 196 persons were
individually granted personal hearing, whereafter spot inspection of the
encroachments/unauthorized construction was conducted in coordination
with functionaries of Revenue Department.
4.1 The Return further reveals that no building permission qua the
petitioner was found on record. Neither the petitioner appeared within the
stipulated period provided by show cause notice nor any document was
produced vouching for the construction being lawful. Accordingly, the
Corporation was compelled to take ex parte action against petitioner and
several other equally placed non-present noticees and direct removal of
unauthoried construction within 10 days by the impugned order.
4.2 Return further contends that petitioner was given ample opportunity of
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being heard, which was not availed by him. It is further contended that
parties in civil litigation are different and, thus, petitioner cannot derive any
advantage out of the judgment and decree annexed along with petition. It is
lastly submitted by respondent/Municipal Corporation that in compliance of
order dated 11.04.2014 in the PIL i.e. W.P. No.6145/2002, the impugned
order has been passed for removal of unauthorized construction made by
petitioner on Survey No.160, which is exclusively reserved for Siddique
Hassan Tank.
5. After having heard learned counsel for rival parties, this Court is of the
considered view that no relief can be extended to petitioner for the following
reasons :
(i) It is not disputed by petitioner that petitioner's plot lies within
Survey No.3274, 3284 to 3287 (presently Khasra No.168) which is
undoubtedly adjacent to Survey No.160 reserved for Siddique Hassan
Tank. The decree of title dated 31.03.1981 granted in favour of
petitioner (in his capacity as L.R. of the original plaintiff) is of no avail
to petitioner since objection of Municipal Corporation is not to the title
but to the encroachment made by petitioner by making unlawful
construction over adjacent land bearing Survey No.160 (exclusively
reserved for Siddique Hassan Tank).
(ii) The decree of permanent injunction dated 03.08.1994 in Civil
Suit No.203-A/89 restrains the Municipal Corporation, Bhopal from
removing construction without following due process of law. Meaning
thereby that by following due process of law, the Municipal
Corporation can remove construction found to be unlawful.
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(iii) Pursuant to show cause notice dated 02.05.2014 (Annexure P/9)
despite grant of ample opportunity to petitioner, no documentary proof
of building permission over Survey No.160, was produced. The
petitioner even failed to produce the application by which building
permission was sought. The records of Municipal Corporation do not
disclose availability of any such application for building permission
made by petitioner.
(iv) The judgment and decree of permanent injunction granted in
favour of petitioner on 03.08.1994 in Civil Suit No.203-A/89 though
refers to Entry No.479 dated 09.06.1989 of registration of an
application seeking building permission, but, petitioner did not appear
or cause to appear before the competent authority within the stipulated
period of time pursuant to show cause notice Annexure P/9. This
compelled competent authority under the Municipal Corporation to
pass impugned order treating the construction over Survey No.160 to
be unlawful.
(v) In the given facts and circumstances where petitioner before this
Court has not produced any material to establish that application for
building sanction was made and the Corporation in its Return has
stated on oath that no such application has been found in its record, this
Court is of the firm view that any construction made on Survey No.160
(reserved for the Tank) is unlawful.
(vi) This case raises various disputed questions of fact (as regards
construction made over Survey numbers except Survey No.160) which
ought not to be gone into while exercising writ jurisdiction especially
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when after final disposal of PIL i.e. W.P. No.6145 of 2002 on
01.04.2022, petitioner can very well approach civil court by filing a
civil suit on the issue of lawful/unlawful possession of the construction
(except construction over Survey No.160) which, if filed ,shall be
decided in accordance with law.
(vii) The factum of deemed permission to construct as claimed by the
petitioner is concerned, the same is of no avail since the impugned
construction which is alleged by the Corporation to be unlawful, is
over Survey No.160 exclusively reserved for Siddique Hassan Tank
whereas the building permission is in regard to plot owned by
petitioner which lies on survey number/numbers other than Survey
No.160.
(viii) The deeming clause u/S.295(3) of the Municipal Corporation
Act, 1956, which is being cited by petitioner is of no avail to petitioner.
The said deeming provision is circumscribed by the condition that even
if a building is being constructed by taking advantage of said deeming
clause, then the same cannot be in contravention of any rule or byelaw
or any town-planning schemes sanctioned under the Act of 1956 or
any other enactment for the time being in force. The construction in
question which has been declared to be unlawful by the Corporation
partly occupied the land reserved for Siddique Hassan Tank on Survey
No.160 whereupon no construction can take place.
6. In the conspectus of above factual matrix,and reasons, this Court
declines interference and extends liberty to petitioner to approach civil court
qua Survey numbers other than Survey No.160, against the impugned order
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in accordance with law.
6.1 Before parting, it would be appropriate to notice that an interim order
was passed in the present case on 02.07.2014, which continued to subsist till
date. Therefore, to afford opportunity to petitioner to approach civil court for
redressal of grievance (qua construction except on Survey No.160), the
interim order is directed to be continued till 31.03.2024.
6.2 It is made clear that in case petitioner avails remedy of approaching
civil court before 31/03/2024 (qua construction except on Survey No.160),
then civil court shall decide the matter on its own merits in accordance with
law without being influenced by this order or by the fact of interim order in
this petition being extended till 31.03.2024.
6.3 It is further made clear that in case petitioner fails to approach civil
court latest by 31.03.2024, then respondent/Municipal Corporation shall be
free to execute the impugned order.
7. With the above said liberty, writ petition stands disposed of.
(SHEEL NAGU) (VINAY SARAF)
JUDGE JUDGE
DV
