--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 5643 / 2011 NARENDRA RAMNANI AND ANOTHER Vs. INDORE MUNICIPAL CORPORATION, INDORE AND ANOTHER * * * * * O R D E R ( 13/10/2011) The petitioner before this Court has filed this present writ petition being aggrieved by the order dt. 8/7/11 passed by the Building Officer, Municipal Corporation, Indore rejecting the representation of the petitioner. This is the third visit of the petitioner before this court. The contention of the petitioner is that he has purchased a piece of land on 31/3/09 from one Rajendra Goyal and the land was reserved for residential purpose. Petitioner has further stated that the land was part of a housing colony which is evident from the sale deed itself and a building permission was granted on 22/11/2010 for constructing shops. Petitioner has further stated that by virtue of the building permission he started --- 2 --- construction activities and while he was going to affix shutters of the building, the Residents' Welfare Association started protesting against the commercial complex and the petitioner left with no other choice came up before this court by filing a writ petition and the same was registered as WP No.6610/2010. This Court has granted permission to the petitioner to install shutters vide order dt. 3/6/10 and has also granted police protection to the petitioner. Petitioner has further stated that as he was not been permitted by the Residents' Welfare Association to construct a commercial complex, he decided to construct a residential house with one small consultation chamber. Petitioner has further stated that while he was constructing the residential house, a notice of demolition was issued by the Indore Municipal Corporation and it was alleged that the petitioner is constructing a residential house though permission has been granted for constructing a commercial complex. The petitioner immediately again came up before this court by filing a writ petition and the same was registered as WP No. 14051/2010. Petitioner has further stated that the matter was also --- 3 --- referred to the Joint Director, Town & Country Planning Department and the Joint Director, Town & Country Planning Department vide letter dt. 29/7/10 has informed the Building Officer that in case the land use is commercial, a residential house can also be constructed as per the sanctioned master plan ie., Indore Vikas Yojna, 1991. The petitioner has filed the opinion of the Joint Director, Town & Country Planning Department dt. 29/7/2010 along with the Master Plan ie., Indore Vikas Yojna, 1991 as Annexure P/13. As the building of the petitioner was being demolished, this court has passed a detailed order on 10/5/11 directing the respondent Municipal Corporation to consider the representation of the petitioner and the representation of the petitioner has been dismissed by the Indore Municipal Corporation. The contention of the petitioner is that the Indore Municipal Corporation on an erroneous interpretation of the Indore Vikas Yojna, 1991 has rejected the petitioner's representation under the impression that it is a case of change of land use and the building officer does not have the power to sanction the building permission. --- 4 --- The contention of the petitioner is that keeping in view the Indore Vikas Yojna, 1991, no permission is required for constructing a residential house / residential portion in case of land which is reserved for commercial use. The petitioner has prayed for quashing of order dt. 8/7/11 passed by the respondents. A reply has been filed in the matter and the stand of the respondent Corporation is that the petitioner was granted building permission in respect of a commercial complex and as this court has directed the Corporation to decide the petitioner's representation, the Joint Director, Town & Country Planning Department was requested to render an opinion in the matter and an opinion has been given by the Joint Director, Town & Country Planning Department on 27/6/11. It has been further stated that as per the opinion rendered by the Joint Director, Town & Country Planning Department, as the building officer does not enjoy the powers to change the land use, the lay out of the petitioner cannot be sanctioned. Learned counsel for the respondent has argued before this court that once the building officer is --- 5 --- not competent to change the land use, the representation has already been rejected and the writ petition deserves to be dismissed. Heard learned counsel for the parties at length and perused the record. The matter is being disposed of at the admission stage itself with the consent of the parties. In the present case, as already stated earlier, this is the third visit of the petitioner before this court. The petitioner has purchased the land in question on 31/3/2009 and the construction activities were started by virtue of building permission granted by the Indore Municipal Corporation on 22/11/07 to the predecessor in title. The petitioner while he was installing shutters in the shops constructed by him, was not permitted to install the shutters by the Residents Welfare Association and the petitioner left with no other choice came up before this Court by filing a writ petition and the same was registered as WP NO. 6610 / 2010. This Court has passed an order on 3/6/10 and police protection was also granted to the petitioner to complete the construction activities. The petitioner inspite of police protection was not --- 6 --- able to complete the construction and submitted an application before the authorities for permitting him to construct a residential house as well as a consultation chamber in place of a commercial complex. The application was turned down and a notice for demolition was issued by the Corporation on the ground that no residential premises can be constructed in place of a commercial complex. The petitioner came up before this Court by filing a writ petition and the same was registered as WP NO. 14051 / 2010. This Court vide order dt. 10/5/11. This Court in the aforesaid case has held as under : 04. Petitioners in the present case have purchased the plot in question on 31-03-2009 and a building permission is also in existence obtained by the predecessor of the petitioner dated 22-11-2007. Petitioners were constructing the commercial complex strictly in consonance with the building permission granted by the Municipal Corporation. However, the Resident Welfare Association of the area started objection in respect of commercial complex which was being constructed by the petitioners. The Resident Welfare Association has categorically raised an objection that a commercial complex cannot be constructed in the area as it will result in creating problems to the residents of the locality. Petitioners while they were installing the shutters in respect of the shops constructed over the ground floor were --- 7 --- restrained by the Resident Welfare Association and the petitioners left with no other choice, came up before this court by filing a writ petition. It is pertinent to note that Municipal Corporation has also issued notice to the petitioner for removing the alleged unauthorized construction. This court while passing an order in WP No. 6610/2010 on 03-06-2010 has directed the Municipal Corporation to provide protection to the petitioners in case the petitioners are completing installation of shutters. Petitioners grievance is that the Resident Welfare Association inspite of there being an order passed by this court started creating hindrance in the construction activities which was going on and the petitioner again approached the authorities and brought an order passed by this court to their notice by submitting a detailed and exhaustive representation. Petitioners have brought on record letter dated 29-06-2010, wherein again the Resident Welfare Association has requested the Commissioner not to permit the petitioners to carry out any construction in respect of a commercial building. Petitioners as stated earlier have submitted a detailed representation to the Corporation and the respondent Corporation in its own wisdom forwarded the matter to the Joint Director Town and Country Planning for seeking permission to permit the petitioner to construct a residential houses along with the commercial establishment on the ground floor. The Joint Director Town and Country Planning department vide letter dated 29-07-2010 has inform the Corporations that Corporation itself is competent to pass necessary orders in the matter as per the Master Plan of 1991 and a copy of Chapter-14 of the Master Plan of 1991 was also forwarded to the Corporation. The same reveals that the land is reserved for commercial purpose and a residential building shall also be constructed along with --- 8 --- shops. Petitioners submitted that as there was a serious objection by the Resident Welfare Association, they submitted a revised map to the Building Officer for permitting them to continue with the shops on the ground floor and a residential house on the first floor and the same has been turned down by the impugned order solely on the ground that the area is exclusively reserved for commercial purpose, as per the Master Plan of 1991. Rule 24 and 27 of the Madhya Pradesh Bhoomi Vikas Rules, 1994 reads as under :- “24. Deviation during construction- If during the construction of a building any departure(excepting for items as given in clause (I) of proviso to sub-rule (1) of Rule 14 from the sanctioned plan is made, the authority may permit such deviation at the time of issuing of occupancy permit, but no deviation shall be permitted by the authority relating to the following building control parameters :- a. Front M.O.S. b. Building Height c. Parking/Public utility space. 27 Grant of permission or refusal :- (1) The authority may either sanction or refuse the plans and specification or may sanction them with such modification or directions as it may deem necessary and thereupon shall communicate its decision to the person giving the notice. (2). In case of proposal for development work, if in the opinion of the Authority, the layouts of plots, or alignment of the street or accessway is not adopted to or would detrimentally affect the layout or development of adjoining lands, the Authority shall require the applicant to alter the layout as deemed necessary. The details --- 9 --- of layout of roads of quality not less than 150 mm. W.B.M. Road, laying of water supply drainage lines to meet the requirement of water supply and sewage affluent of the population to the level of the municipal main, as decided by the authority shall be furnished to the entire satisfaction of the Authority or the the expenses for such development, as estimated by the authority.” 05. The aforesaid statutory provisions of law does permit the Building Officer to sanction the revised lay out and the same is also not in dispute that the Revised Plan can be submitted even though there is a sanctioned lay out in existence. This court has carefully gone through the impugned order dated 14-12-2010 and the sole reason assigned in the impugned order is that the land use is commercial in respect of the area in question and therefore the question of granting permission to construct a residential house does not arise. This court has also carefully gone through the Master Plan of 1991 (Indore Development Scheme, 1991) and the same establishes that in respect of all areas which are reserved for commercial use, shops as well as a residential house can also be constructed. The master plan has not been denied by the Municipal Authorities, on the contrary it was forwarded to the Municipal Authorities by the Joint Director Town and Country Planning deportment for taking appropriate action in respect of the revised lay out submitted by the petitioners. 06. Resultantly, as the Municipal Corporation has not considered the Master Plan, 1991 while passing the impugned order, the impugned order dated 06-12-2010 is hereby quashed. Respondents are directed to pass a fresh order after hearing the petitioners in view of Indore Vikas Yojna, 1991 read with Madhya Pradesh Bhoomi --- 10 --- Vikas Rules, 1984 and Madhya Pradesh Corporation Act, 1956. The aforesaid exercise be concluded within a period of sixty days from the date of receipt of certified copy of this order. It is needless to mention that respondent authorities shall not proceed ahead with the matter of demolition till the matter is finally decided by them, keeping in view the Master Plan of 1991. Parties shall maintain the status-quo as it exists today, till a final order is passed in the matter as aforesaid. 07. With the aforesaid writ petition stands disposed of. No order as to costs. The aforesaid order makes it very clear that the matter was remanded back to the Indore Municipal Corporation as the Corporation in the past has not considered the Master Plan of 1991 while passing the impugned order dt. 6/12/2010 by which demolition was ordered by the Corporation. The Municipal Corporation has now passed the impugned order which is enclosed as Annexure P/22 dt. 8/7/11. The Indore Municipal Corporation while rejecting the petitioner's application for permitting him to complete the residential premises as well as commercial premises has observed that the Building Officer is not competent to change the land use. No other reason has been assigned in the impugned order. This Court has carefully gone through the earlier opinion rendered by the Joint Director, Town & Country Planning Department as well as the Master Plan of the year 1991. The relevant Master Plan (Indore Vikas Yojna, 1991) reads as under : vkoklh; vkoklh;] fpfdRlky;] ?kuRo lhek lfgr Nk=kokl] f'k'kq 'kkyk,a cky fopkj] efUnj] efLtn] fxjts ,oa vU; vkjk/kuk x`g] fpfdRlkx`g] lkekftd ,oa lkaLd`frd laLFkk,a ] lkoZtfud lqfo/kk,a ,oa Hkou] gksVy] O;olkf;d dk;kZy; ;k O;olk;x`g ;fn ,d Hkou esa fLFkr gks] fpfdRlky;] futh fpfdRlky; tks Li'kZtU; jksxksa dk mipkj u djrs gksa] --- 11 --- euksjatu vk;ksx] Dyc] VsDlh o LdwVj LVsaUM egkfo?kky;] 'kks/k dsUnz ] uxjikfydk] jkT; ;k dsUnzh; dk;kZy;] eqxhZ ikyu] ?kjsyw m?kksx] LFkkuh; nqdkusa vkVk pDdh /kkfeZd ,oa lkaLd`frd laLFkk,a] isVªksy iEi lapkyd I;ZVu Lohd`r gksVyA okf.kfT;d QqVdj nqdkus] O;kikfjd ,oa O;kolkf;d dk;kZy;] lsok mi;ksx tSls ukbZ] /kksch] nthZ dh nqdkusa] vYikgkjx`g ] euksjatu dsUnz tSls flusekx`g o ukV~; x`g fof'k"V cktkj] Fkksd cktkj] eafM;k] xksnke Hkou fuekZ.k lkexzh] ikfdZax {ks= vkoklh; Hkou O;olkf;d izfr"BkuA isSVªksy iEi lsok dsUnz ydMh] dks;yk o bekjrh ydMh dh Vky] pwaxhdj eqDr {ks= cgqe ftys Hkouksa ds d{kksa esa m?kksx ] lsok m?kksx ftlls dksbZ ck/kk u gks] NksVs dkj[kkus ,oa ejEer dh nqdkusa rFkk eafM;ksa esa d`f"k ij vk/kkfjr m?kksxA The aforesaid extract of Master Plan 1991 makes it very clear that in case the land use is commercial, construction of a residential building is also permissible and for sanctioning the layout, no permission for change of land use is required. Column 3 provides for change of land use by competent authority and residential building is not at all included in column 3, meaning thereby no such permission of Town & Country planning Department is required in the present case as observed by the building officer. Not only --- 12 --- this, the Building Officer has also referred the matter once again to the Joint Director, Town & Country Planning Department and the Joint Director, Town & Country Planning Department on 27/6/11 has informed the Commissioner, Indore Municipal Corporation, Indore as under : izfr] vk;qDr uxj ikfydk fuex] bankSj e iz fo"k;%& lfPpnkuan uxj ds laca/k esaA lanHkZ%& uxj f'kYiK] Hkou vuqKk 'kk[kk] uxj ikfydk fuxe bankSj dk i= dzekad 1231 fnukad 25@06@2011 mijksDr fo"k;kUrxZr ys[k gS fd fdlh Hkh dkyksuh dk tc vfHkU;kl Lohd`r fd;k tkrk gS rks izR;sd Hkw[k.M fdl iz;kstu gsrq gS] ;g Li"V jgrk gSA ftu Hkw[k.Mksa dk iz;kstu vkoklh; gS] muesa vkoklh; Hkou dh vuqKk nh tk ldsrh gS o ftu Hkw[kaMksa dks nqdku gsrq fufnZ"V fd;k x;k gS mu ij nqdkuksa dh vuqefr nh tk ldrh gSA dk;kZy;hu i= dza 4573 fnukad 29@07@2010 esa dgha Hkh ys[k ugha fd;k x;k gS fd Hkou vf/kdkjh Hkwfe mi;ksx ifjorZu djus esa l{ke gSA mDr i= esa bankSj fodkl ;kstuk 1991 ds v/;k; 14 dk mYys[k djrs gq, fu;ekuqlkj dk;Zokgh dk mYys[k fd;k x;k gSA vr% vkids pkgs vuqlkj Li"V fd;k tkrk gS fd e iz Hkwfe fodkl fu;e 1984 ds fu;e 8 ls 11 rd dh Nk;kizfr layXu gSA ftlesa Hkou vf/kdkjh ds vf/kdkjksa dk mYys[k fd;k x;k gSA Hkou vf/kdkjh dks iznRr vf/kdkjh esa Hkw mi;ksx ifjofrZr djus dh 'kfDr;ksa dk dgha Hkh mYys[k ugha gSA vko';d dk;Zokgh gsrq izsf"krA la;qDr lapkyd uxj rFkk xzke fuos'k ftyk dks"kky; bankSj --- 13 --- The aforesaid letter of the Joint Director further makes it very clear that the Building Officer was earlier vide letter dt. 29/7/2010 directed to take appropriate steps keeping in view the provisions of the Indore Vikas Yojna, 1991. The Building Officer on an erroneous interpretation of the aforesaid letter dt. 27/6/11, has rejected the petitioner's representation. This Court is of the considered opinion that the present case is certainly not a case for grant of permission for change of land use and therefore the Building Officer was competent to pass a detailed order on merits as directed by this Court earlier. Resultantly, as the Building Officer has on an erroneous interpretation of the Master Plan, 1991 rejected the petitioner's representation / application, the impugned order dt. 8/7/2011 is hereby set aside. The matter is again remanded back to the Building Officer (Indore Municipal Corporation, Indore) to pass a fresh order on merits keeping in view, the Indore Vikas Yojna, 1991 as it certainly not a case of change of land. With the aforesaid, the petition stands allowed. The --- 14 --- parties are directed to maintain status quo as it exists today till a final order is passed in the matter. No order as to costs. (S. C. SHARMA) J U D G E KR