1. |.?f.( •.S.A..Ai,gi.e)*! v^.^^-^/ IH THE HIQH COURT OF JUDICATUEE AT JABAI,PUR~~UJAP.S) Writ Petition No.L)-5'G,^< /2000 Raj Kuroar CQll.ege Society, a Society registered. under. the provisions of Societies Registrikaran Ae-t, 1860 and having deemed registrati.on under the provisions of M.P. Societies Kegistrtkaran Adhiniyam, 1973, through. its Secretary, College Ward S.E. Road, Raipur, District Raipur (M.P.) Ashok Singhania, S/p. Shri Virdichand Singhania, aged about-M5 years, Hanaging EaFtner M/s. Avinash Builders, a partnership firm registered under the Indian Partnersbip Act, 1932, resident of G.E. Eoad fiaipur (M.P.) V E-5-^.^ g Stats. of Madhya Pradesh, Through Secretary, Urt>an Administration - & Development Department, Vallabh Bhawan, Bhopal Collector, Raipur (M.P.) Joint Director, Town & Country Planning, Raipur (K.P.) ! Municipal Corporation.Raipur, a body incroprated ^ UBder Section 5 of tlis M.P. Municipal -Corporatioii; AGt, 1956, having its qffiee .Stt S. E. Road, Raipur (M. P,;) , 'iffiIT^EBTITION.riraDEE^RTICtES 226/22?^^^^^^^^ 'sSeSSS WS3 "^^;^ :a <. GOHSTITUTIOM OFaIMDIA :.ftii ^' ."'•r^:lt^?;^ij$ ?"'^^:N^^ ^V:^^K} I'W ^•i^^^6S£-. ...-.^SSasS.&.QisSeSissieiss! w. '.•^'•^i:;' '•t-~\ •y.'. (.'*"* fflGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION N0. 4562/WQ9 Raj Kumar CoUege Sodety and Another Versus— State of Madhya Pradesh (Now Chhattisgarh) And Ofliers. ORDER y^: y^' POSTFOR a-^ /09/2001 _fi- Sdl- R.S. Garg Judge ^ ^, ^ N^<^ x\^ '^tvA''^'~ v^ "^ " \^ fflGH COURT OF CHHATTISGARH : BILASPUR WRTTPETmONNO. 4562/2000 Raj Kumar CoUege Sodety and Another Versus State of Madhya Pradesh (Now Chhattisgarh) And Ofliers. ;<* ORDER Per Hon'ble R.S.Gare.J. : l.llll.il By this petition Under Article 226 of the Constitution of Indi'a the petitioners seek to challenge the correctness, Validity and propriety of the Order dated 06.05.2000. (Annexure- P/19) passed by the Ministry of Urban Administration and Development Department, cancelling the building permission No.398, dated 27.06.98. on tbe ground that the order passed by the State Government is contrary to law and is also bad on the factual foundation. The order - Annexure- P/19 has been issued by the State Government in exercise of Powers under Sectton 299-A of the M.P. Municipal Corporation Act, 1956. 2). The facts necessary for the disposal of the petition are that the petitioner No.l Raj Kumar College as alleged was founded at Jabalpur in 1882 and was later on r^y | WwS, shifted to Raipur at its present site in |18S4.: :;::i;By'^^ai|!j@ ^^;tl^??^ i^I^SI^ .</~ — 2 — registered indenture of lease dated 24.10.1964 . the State Government leased out an area .ad-measuring 54,06,612 Sq. Ft. of nazul land situate at West Civil Station, G.E. Road, fcrithin the limits of Municipal Corporation, Raipur for a term of 30 years, commencing from 24.10.64. The lease was later on renewed and is effective upto 31.3.2022. The details of the demised premises are mentioned in paragraph 5.2 of the petition and have not been disputed by the respondents. According to the petitioners, in March 1953 memorandum of association and rules and regulation of Petitioner Society were amended for the second time by which Hon'ble Governors of Madhya Pradesh, Orissa and Bihar were made Patrons of the Society and the President of India as Patron-in-chief. According to the petitioners, it has almost 800 students studying in the said college/ .School. Ihe school^ affiliated to the Central Board of Secondary Education. They submit that the Government of India so also the State Government due to financial constraints have drastically reduced their contribution for education and the State Government has advised the educatlonal institutions to devise ways and means to generate their own funds for carrying out their further developmental activities in the institution. 3). The premises which have been leased out in favour of the petitioners on the northern side abuts national high-way No.6, popularly known as Great Eastern Road(G.E.Road) and passes through the middle of the city of ^^ -3 Raipur. According to the petitioners for the past several years the petitioner No.l was facing acute problems of encroachment over the demised land abutting on the G.E.Road, the recurring encroachment became regular nuisance and the same was also posing a potential threat to the peace and tranquility' of the hostel run and managed by the petitioner No.l Society in which according to the petitioner No.l almost about 500 students have been boarded. The society took a decision to construct permanent shops all along the northern boundary wall facing G.E.Road and covering approximately an area of 20,000 Sq. Ft. The Society by a resolution dated 30th June, 1994 gave powers to its Managing Coinmittee to control and administer the property movable and immovable of the Society to raise funds, acquire and sell the property to hold interest for the Society. This resolution was approved by the Registrar of Firms and Societies, Bhopal. The Managing Committee thereafter took-up the project for construction of the shops/ shopping complex on the strip of the land facing G.E. Road admeasuring 40 x 1120 Ft. on the eastern side of the northern gate and 40 x 960 Ft. on the hrestern side of the gate and invited tenders from the builders and contractors to undertake the project. 4). According to the petitioners M/s Avinash Builders, Raipur represented by Ashok Singhania- petitioner No.2 agreed to the terms and conditions of the petttioner society, therefore, the Society approved the offers of M/s Avinash Builders - Petitioner No.2^ and^ one -.4- M/s Jitendra Properties to develop both the strips of the land and to pay premium of Rs. 12,00,OOO/- each and also to pay annual lease money of Rs.6,00,OOO/- after completion of the complex. The petitioners submit that after some time M/s Jitendra Properties backed out of the agreement, therefore, M/s Avinash builders were requested to take-up the project left by M/s Jitendra Properties, who in his turn accepted the proposal and agreed to pay premium of Rs. 24,00,OOO/- and annual lease money of Rs.12,00,OOO/-. The petitioners say and submit that 'in accordance. with Section 29 of the M.P.Nagar Tatha Gram Nivesh Adhiniyam,1973, they made an application to the Joint Director, for grant of permission to develop the land. The Joint Director, Town and Country Planning, vide Order dated 30.1.96.- Annexure- P/4 was pleased to grant permission subject to terms and conditions mentioned in the said order. 5). Being aggrieved by the conditions imposed in the 5aid order the petitioners filed a revision petition under Section 32 of the Adhiniyam. The State Government vide its Order dated 26.3.97. set aside the order dated 30.1.96. passed by the Joint Director and required the petitioners to make a fresh application in accordance with Section 29 of the Act. In 'accordance with the liberty given by the State Government the petitioners made yet another application to the Joint Director for according permission. The Additional Collector after obtaining reports from different persons and departments issued his no objectj^cic—--^' te -5- f ^ * on 27.10.97. The Joint Director, Town S Country Planning, Raipur after reconsidering the entire matter afresh,. vide his order dated 23.1.98.(Annexure-P/7) accorded permission to the petitioners to develop the land subject to terms and conditions mentioned in the order. Subsequent to that tbe petitioners made an ' application to the Municipal Corporation,Raipur. Municipal Corporation, Raipur vide its permission No.398, dated 6.6.98. (Annexure- P/8) allowed the construction. ^ 6). The petitioners were permitted to raise height of the building upto 22 feet. The petitioners thereafter, proceeded with tbe work. The petitioriers say and submit that the land on which proposed shops were to be constructed, was undulated and had number of ditcbes. The land was atleast . about .7 or 8 feet below the road level, therefore, pillars were erected in order to bring the level of the construction to the height of the road. The petitioners thought changes in the proposed construction as sanctioned by the Municipal Corporation, have become inevitable. The petitioner No.l on 15.4.99. submitted an application to the Commissioner, Municipal Corporation, for proposed changes in the height of the ground floor from 12 Ft. to 16.5 Ft.. According to tbem, a copy of the application ( Annexure-P/9) was received by tbe Corporation ,| on 19.4.99., but the Municipal Corporation did not convey y its refusal to the proposed modification within . the^lgl statutory period of 30 days as provided under Sub-Sec^|||g^j p. , , -6- (3) of Section 295 of the M.P.Municipal Corporation Act, therefore, the petitioners taking benefit of the statutory fiction of deemed permission proceeded further with the construction. According to them, the petitioners had deemed sanction in their favour w.e.f. 18.05.99. in view of the Section 295(3) of the Act. According to them, the respondent/Corporation served them with a communication dated 6.8.99. (Annexure- P/10) beyond the prescribed statutory period of 30 days informing the petitioners that the revised plan submitted by them could not be sanctioned. According to the petitioners, Annexure- P/10 issued by the respondent/Corporation was null and void. The petitioners further say that they were served with a notice dated 15.6.99. (Annexure- P/ll) purporting to have been issued under Section 293 and 307 of the Municipal Corporation Act, 1956 by whi.ch an objection was raised with regard to construction of Mezzanine floor at the height of about 9 Ft. from the ground floor. The petitioners were required to stop the construction work. According to the petitioners, under the legal advise they continued with the work on the basis of deemed aanction. Vide ^nnexure- P/12, usa-."- ^> notice dated 13.8.99. the petitionersyrequired to comply with Annexure-P/11. The petitioners in their turn Vide Annexure-P/13 sent reply to the Corporation Authorities that the construction was being carried out in accordance with the sanctioned plan and they were not committing any violati-on. Vide Annexures P/14 to P/16, notices dated 29.9.99, 15.9.99 and 3.1.2000. were again issysd to the .-7- petitioners. According to the petitioners the notices were unnecessarily interfering with their right to construct because by that time the petitioners had made huge investment of about Rs.60,00,OOO/- towards the construction of building. The petitioners submit that the State Government in exercise of its powers vested in it under Section 421 of the M.P.Municipal Corporation Act, issued a notice dated 4.2.2000. (Annexure- P/17) to show-cause as to why the building permission No.398 be not recalled or cancelled. From Annexure- P/17 'which has also been filed by respondent No.4 as Annexure- R-4(2), it would appear that the notice was issued under Section 299-A of the Corporation Act. The petitioners submit that they submitted their reply vide Annexure- P/18 and informed the State Government that they did not make any illegal construction. The construction ivas in accordance with the sanction and deemed sanction and as they have not made any illegal construction, sanction could not be recalled or cancelled. According to the petitioners, they had informed the State Government that they have not made any illegal construction in the marginal open space ( MOS ) nor they had constructed the basement. According to the petitioners the construction was in accordance with law and therefore, there was no good reason for the State Government to recall the order, but, however, the State Government vide its order dated 6.5.2000. ( Annexure- P/19) cancelled. the earlier sanction and directed the Municipal Corporation to take action in accordance with law. The petitioners submit -8- that the order passed by the State Government and subsequent action taken by the Municipal Corporation are bad, illegal and contrary to law, therefore, the order passed by the State Government and all consequent actions taken by the other authorities deserve to be quashed. The petitioners further submit that on 14.1.2000. they made an application to the Joint Director, Town & Country Planning, Raipur, that the land use be changed from educational to commercial. According to them vide Annexure-P/22, the Joint Director made recommendations in favour of the petitioners and submitted to the Director that the land use may be changed in relation to part of the land from educational to commercial. The petitioners also submit that the State Government in accordance with the application of the petitioners and the recommendations of the Joint Director/Director publisbed its intention in two news papers on 16th September and 17 September, 2000, but within the period specified no objections were received, therefore, vide notification No. F-3-149-32-2000, dated 17.10.2000, published in Gazette, dated 20.10.2000. the State Government changed the land use of land Nos.27, 30 and 31, total area of 80,000 Sq. Ft. from "public and demi-public (education)" to commercial parking etc. They submit that if the land use has already been changed from educational to cominercial, at this stage the respondents cannot be allowed to say that the construction of shops was contrary to the provisions of law. The petitioners also submit that if the area has now become commercial, the ..9- 1 State Government or Municipal Corporation cannot be allowed to say that the sanction was given for construction of small shops and as the petitioners have constructed 60 shops, the petitioners have violated the spirit of the order passed by the Joint Director, Town S Country Planning. 7). The respondent Nos.l and 2 have filed their separate returns, but virtually have raised identical pleadings. According to these respondents, permission granted by the Municipal Corporation was wrong, illegal, improper and was against the order of the permission of Housing and Environment Department dated 23.6.97. According to theae respondents, the Joint Director, Town & Country Planning granted permission to the petitioners subject to certa.i-n conditions, the petitioners could raise the construction in accordance with the said permission only. They further submit that the petitioners were never accorded permission for construction of 60 shops (Shopping complex ) nor they were granted permission for construetion of residential units. According to these respondents, permission granted by the Municipal Corporation was running contrary to Annexure R-l (3). It is also submitted by these respondents that only 12 shops could be raised by the petitioners in accordance with the Annexure- P/6. It is further submitted by them that the Government was Competent to take action under Section 299-A of the Municipal Corporation Act. These respondents also submit 10- .i- tbat the permission granted by the Municipal Corporation was cancelled because the petitioners violated the lease conditions by converting/developing the lease hold property for commercial purposes. Denying the grounds, they have prayed for dismissal of the petition. The respondent No.3 did not propose to file any return. 9). The respondent No.4 - Municipal Corporation filed its separate return. In its return, it has submitted that the respondent No.l was justified in cancelling the building permission. According to them, they had submitted their coinments before the State Government. They also submit that the petitioners were raising illegal constructions, were constructing the basement, had constructed mezzanine floor and did not leave three and half feet marginal open space on either side of the shop, therefore, jl/tlqid the Corporation issued notices to the petitioners and the State Government was justified in cancelling the building permission. It is also submitted by them that they received the petitioners' application dated 15.4.99. and have rightly rejected the same on 6.9.99. According to them, the petitioners have not challenged the order dated 6.9.99., therefore, they cannot be allowed to say that there was a deemed sanction in their favour and tbe petitioners were entitled to proceed with the construction. It is also submitted by them that in -11 - c^ accordance with Annexure- P/19 they have to take steps and they are not acting illegally. 10). Shri Alok Aradhe,learned counsel for the petitioners submits that the State Government is unjustified in saying that only 12 shops were to be constructed. According to him, the Collector in Annexure- P/6 recommended construction of 12 shops, but the Joint Director, Town S Country Planning, did not restrict the construction to 12 shops only. According to him, from Annexure-P/7 it would clearly appear that no such condition was imposed. \ 11). Shri Ranbir Singh, learned counsel for the State, on the other hand submitted that only 12 shops were to be constructed. 12). Annexure-P/7 dated 23-1.98.is the sanction accorded by the Joint Director, Town S Country Planning, it says that 20,000 Sq. Ft. of land of Block No.27, 30 and 31 of Plot No.8.22 admeasuring 540612 Sq. Ft. is permitted to be developed in accordance with Section 30(3) of the M.P. Nagar Tatha Gram Nivesh Adhiniyam,1973 read with Rule 27 of the M.P. Bhoomi Vikas Niyam, 1984, the Joint Director imposed as many as 12 conditions in the said order, but no- where said that only 12 shops were to be constructed. Undisputedly, the order Annexure-P/7 '£3 still stands and the State Govermuent or any authority has not recalled or -12 revised the said order. The conditions say that the shops would be constructed in accordance with M.P. Bhoomi Vikas Niyam,1984; without offending the archeological beauty of the building. It imposed certain conditions that what would be distance from the center of the main road, maintenance of parking and corrldor in front of the shops, trees would not be fell, the petitioners would be required to obtain sanction or permission from the competent authority before raising construction and the said sanction would be valid for a period of 3 years, but 6n an application it may be extended to a total period of 5 years. 13). After going through the entire order (Annexure- P/7), I am unable to find that the Joint Director accorded permission or sanction only for 12 shops. Iri fact, the Joint Director, .Town s Country Planning, Raipur allowed development of 20,000 Sq. Ft. of land and permitted construction of the shops and residential purposes. 14). Shri Manindra Shrivastava, learned counsel' for respondent No.4 submitted .that in accordance with the sanctioned map three and half feet land was to be kept open as the marginal open space meaning thereby that between two shops atleast 7 feet land was to be kept open. Referring to the sanctioned map, he submits that the petitioners without leaving the said marginal open space covered the area of marginal open space and as such they have raised illegal construction. l^ -13 15). Shri Alok Aradhe,learned counsel for the petitioners submits that a perusal of the map along with the conditions appended on the back of the map would show that three and half feet or seven feet marginal open space was not to be left open between two shops. He submits that a perusal of the map, design and elevation would show that no marginal open space between two shops was to be left open. ^ te 16) . I have gone through the original map which was produced by the Corporation at the time of final hearing and the conditions appended with Annexure-P/8. The condition Nos. 1 to 16 appended to sanctioned map do no- where say that on either side of the shops three and half feet land was to be kept open and/or between two shops a distance of 7 feet was to be maintained. 17) . Shri K.P.Bajpai, Officer'-in-Charge, for respondent No.4, who also happens to be Town Planner was present in the Court at the time of hearing. Placing strong reliance upon the sanctioned map, the Town Planner Mr.K.P.Bajpai made a submission before this Court that the block was to be constructed in a fashion and design that three and half feet open place was left on either side of the block. According to him, between two blocks, an open place of 7 feet was to be made available because between two blocks three and half feet distance from each block waa to be left open. He submitted before the Court that the - 14 - (^ ^ ^ conditions under which map was sanctioned are typed on the back of the sanctioned map. He made a statement before the Court that in the said typed matter this particular conditipn of leaving three and half feet open place from the side of the block was mentioned. A t 18) . I went through the said conditions and to my surprise I found that there was no such condition imposed. I gave the original ^document to Mr. Bajpai, who after going through these documents says that on the back of the sanctioned map, no such condition has been imposed . The Town Planner admits before this Court that when the construction was going on, he himself inspected the spot. According to him, he found that the construction was contrary to the sanctioned map because he did not find 7 feet open place betw^een two blocks but he did not issue any notice to the petitioner or the builder that the construction was being raised contrary to the sanctioned map. The Town Planner Mr.Bajpai admits in presence of his counsel that when the construction was going on, number of persons inspected the constructions but not even a single officer ever reported to the Corporation that the required 7 feet open place was not left between two blocks and nb notice was ever issued on any such report by the Corporation to the petitioner or the builder that tetiew; construction was contrary to the sanctioned map. !SBsa aa -15 /r •» ,^ > t 19) . On being asked that if the sanctioned map does not show that open place of three and half feet was to be left on either side of every block making an open place of 7 feet between two blocks and on inspection it was so found that no open place was left, why the notices were not issued, the Town Planner, Mr. Bajpai through his counsel says that specifically such notices were not issued but the notices saying that the construction was illegal were issued. I pointedly asked that in a case where the open place was not left why the construction was allowed to continue, neither the counsel nor Mr.Bajpai said anything. When I asked that why it should not be presumed on strength of the map and the conditions appended on the back of the map that no such open place was to be left, learned counsel said that a fair reading of the map would show that open place of three and. half feet on either side of block was to be left making it total 7 feet between two blocks. 20). After going through the map and the conditions appended on the back of the sanctioned map, I am unable to hold that the petitioners were required to leave three and half feet marginal open space on either side of the shop or required to maintain distance of 7 feet between two shops. The argument raised by learned counsel for the respondent No.4 deserves to and is accordingly rejected. 21). Shri Manindra Shrivastava,learned courisel for th'e Corporation submitted that contrary to the Sandtioned pian SSSSSsasS^sSS -^- r. -^ M the petitioners raised construction of basement below the ground floor and as the basement was not allowed to be constructed, total construction is contrary to the plans. 22). Shri Alok - Aradhe,learned counsel for the petitioners countering the argument submitted that the ground was undulated; there were big ditches and the level of the ground was about 3 to 7 feet below the road level, therefore, after going further excavation the pillars were raised. The petitioners thought that if the basements are constructed it would raise some revenue for them, but iinmediately after the objection was raised by the Corporation they did not construct the basements and covered the entire area from the side walls and thereafter put the floor o.f ground floor on the columns. According to him, the area underneath the floor or ground floor is hollow and none have any access to it. He further submits that as the area was left as it is it cannot be used and utilized as a basement. According to him underneath no flooring has been done, no proper walls have been raised, no water proofing has been done and as there is no access to the said hollow area it cannot be termed as a basement. 23) . It is to be noted that in accordance with the directions