W.P.No.2002/10 1 20/09/2011 Shri Dipak Chandna, Advocate for the petitioner. Shri P.D.Bidua, Advocate for the respondent- Municipal Corporation. Heard. The petitioner has filed this petition against the notice in regard to removal of encroachment. The petitioner submitted an application for grant of permission for construction of certain building. It was granted to the petitioner by the Municipal Corporation, Gwalior. Thereafter the Municipal Corporation informed the petitioner that it had contravened the conditions of permission granted by the Municipal Corporation for construction. The State Government issued a notification and added Section 308-B in M.P. Municipal Corporation Act, 1956. By the aforesaid amendment, power of compounding has been given to the Commissioner of Municipal Corporation for certain period. The petitioner submitted an application to the Municipal Corporation for compounding. The Municipal Corporation allowed the application of the petitioner for compounding vide order dated 7-7-2006 and directed to deposit an amount of Rs.8,99,664/- as compounding fee and also directed to receive fire NOC from the W.P.No.2002/10 2 Municipal Corporation. Meanwhile, a Public Interest Litigation Petition was filed before this Court, which was registered as W.P.No.3178/2006(PIL) (Sardar Joginder Singh Vs. State of M.P. & Ors.). This Court appointed the District Judge, Gwalior to enquire the cases of compounding. The District Judge in his report held that the order of compounding of the petitioner was not proper. On the basis of the report of the District Judge, the Municipal Corporation issued impugned notice to the petitioner in regard to removal of construction. Thereafter the Division Bench of this Court vide order dated 4-8-2008, disposed of the aforesaid Public Interest Litigation petition with the following directions :- 4/8/2008 Applicant by Shri Padam Singh, Advocate. Respondents No.1, 2 and 4 by Shri Vivek Khedkar, Government Advocate. Respondent No.3 by Shri P.D.Bidua, Advocate. Respondent No.5 by Shri Sanjeev Jain, Advocate. Heard. This writ petition is filed as P.I.L. by the petitioner alleging that the respondent corporation is illegally compounding the matter of 308 buildings which were constructed contrary to the Municipal Corporation bye laws. Counsel for the Municipal pointed out that there is amendment in Municipal Corporation Act dated 2nd August, 2005. Accordingly, the Corporation has examined the buildings and also examined the applications for compounding and compounded number W.P.No.2002/10 3 of buildings and permission was cancelled in respect of other building. This Court has also called for report of the District Judge about complaint with regard to compounding. The District Judge, Gwalior has given his report that the Corporation undertakes to comply with the defects pointed by the District Judge in his report and takes strong action against the persons who had constructed buildings contrary to bye laws and whose application for compounding is found untrustable by the District Judge. The Corporation is free to compound the matters in regard to the buildings whose application for compounding are found proper and remove the construction where compounding applications are rejected. Petitioner or any other person aggrieved is free to move appropriate applications under Section 307 if they feel that the constructions are wrongly compounded. With this direction this petition is disposed of. Amount of security deposit be refunded to the petitioner after due verification.” It is clear from the direction issued by this Court that the Corporation was given a liberty to compound the matters in regard to building whose applications were found proper. In the present case, the Corporation has not pointed out any illegality about the application of the petitioner, hence, the order of compounding in the case of the petitioner could not be said to be illegal. The State of M.P. inserted Section 308-B by M.P.Act 29 of 2003. The aforesaid Section prescribes power to the Commissioner Municipal Corporation for compounding and gives relaxation in compounding the W.P.No.2002/10 4 unauthorised construction. The relevant Section is as under :- “308-B. Relaxation in compounding the unauthorised construction.- (1) Notwithstanding anything contained in Section 308-A or any other provisions of this Act or any other law for the time being in force, the Commissioner may, on the application made in this behalf by order, compound the cases involving deviations from the approved plan or map, or construction made without permission by collecting compounding fee at such rate as may be determined by the State Government. (2) The application under sub-section (1) shall be made within 90 days from the date of the commencement of [the Madhya Pradesh Nagar Palik Vidhi (Sanshodan) Adhiniyam, 2005 and the Commissioner shall, after making such enquiry as he deems fit decide all applications received under sub-section (1) within six months from the date of receipt. If the Commissioner fails to decide the applications received under sub- section (1) within the aforesaid period he will be deemed to be guilty of dereliction of duty and liable for disciplinary action. (3) Upon the issue of the order under sub-section (1), permission shall be deemed to have been granted under this Act and the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 and the rules and bye-laws made thereunder. (4) Nothing contained in sub-section (1) shall apply to any application by any person who does not have any right over the building or the land on which the construction has been made or to any application in respect of any building erected or constructed in any of the following areas :- W.P.No.2002/10 5 (i) area notified by the State Government as a hill station or a place of Tourist importance or as sensitive/fragile from the point of ecology; (ii) area specified for parking of vehicles; (iii) area coming within the Road or area affecting alignment of Public Roads; (iv) area specified for tanks (Talab) : [Provided ............ Omitted.] (v) area of construction affecting regular building line.] [(vi) area of construction coming within thirty metres or such further distance from the river bank as may be specified in the master plan of the concerned town; (vii) area of any nallah and water stream.]” Thereafter the Secretary Local Self Government issued a circular dated 21-9-2005 to authorize the Commissioner of Municipal Corporation in regard to compounding under Section 308-B of Municipal Corporation Act. As per the aforesaid circular the Commissioner is authorized to pass an order of compounding under certain circumstances, which are as under :- “¼3½ bl /kkjk ds vUrxZr uxj fuxe vk;qDrksa@eq[; uxjikfydk vf/kdkfj;ksa dks fuf'pr le;&lhek ds Hkhrj izkIr vkosnuksa dk fujkdj.k djuk gSA vr,o bl /kkjk ds vUrxZr izkIr gksus okys vkosnuksa dk fujkdj.k djus ds fy, fuEukafdr fn'kk&funsZ'k tkjh fd;s tkrs gSa %& ¼1½ Hkouksa ds vxz Hkkx esa [kqys ik'oZ LFkku esa fd;s x;s fuekZ.k ls ;fn fu;fer Hkou iafDr izHkkfor gksrh gks rks ,sls fuekZ.k dk iz'keu ugha fd;k tk;sxkA ¼2½ Hkouksa ds cslesaV esa LVksj ,oa ikfdZax dh gh vuqefr nh W.P.No.2002/10 6 tk;sxh rFkk cslesaV ds buls fHkUu mi;ksx dh n'kk esa 'keu ugha fd;k tk;sxkA ¼3½ Å¡ps Hkouksa ds ekeys esa us'kuy fcfYMax dksM ds izko/kkuksa lfgr vfXu lqj{kk laca/kh fu/kkZfjr ekin.Mksa ds vuq:i O;oLFkk;sa gksus vkSj gkbZjkbZt desVh ls vuqeksnu izkIr djus ds mijkar gh ,sls lfUuekZ.k ds 'keu ij fopkj fd;k tk ldsxkA ¼4½ ,sls lafUuekZ.kksa@Hkouksa ¼tSls eSfjt gky] Ldwy] lkeqnkf;d Hkou vkfn½ tgka vf/kd la[;k esa yksx bdV~Bs gksrs gSa] esa vfXu lqj{kk laca/kh fu/kkZfjr ekin.Mksa ds vuqlkj lHkh O;oLFkk;sa gksus ij gh 'keu fd;s tkus ij fopkj fd;k tk ldsxkA ¼5½ fodkl ;kstuk esa fu/kkZfjr Hkwfe mi;ksx ds vuqlkj vuqKs; iz;kstu ds fy, gh Hkouksa@lafUuekZ.kksa ds 'keu ij fopkj fd;k tk ldsxkA ¼6½ ftu ekeyksa esa] fd;k x;k fuekZ.k ml LFkku ds fy, vuqKs; ,Q-,-vkj- ds 10 izfr'kr ls vf/kd gks] muesa lapkyd uxj rFkk xzke fuos'k] e/;izns'k dk vfHker izkIr fd;k tk;sxk vkSj lapkyd ds vfHker ds vuqlkj iz'keu ds laca/k esa dk;ZokbZ dh tk ldsxhA ¼7½ vf/kfu;e esa mYysf[kr ^^laosnu'khy** vkSj ^^Hkaxqj** {ks= ls vk'k; i;kZoj.k dh n`f"V ls laosnu'khy] xzhu csYV] ikdZ vkSj fodkl ;kstuk esa n'kkZ;s x;s bdks&lsalsfVo {ks= ls gS] vr,o ,sls LFkkuksa ij gq;s lafUuekZ.kksa dk 'keu ugha fd;k tk,xkA ¼8½ unh vFkok ugj ds vykok ;fn fodkl ;kstuk esa fdlh rkykc ls U;wure fu;r nwjh rd lafUuekZ.k dk fu"ks/k fd;k x;k gks rks ,slh nwjh ds Hkhrj fufeZr Hkouksa dk 'keu ugha fd;k tk,xkA ¼9½ gokbZ vM~Mksa ds {ks= esa ,;jiksVZ vFkkWfjVh vkWQ bafM;k }kjk yxk;s x;s izfrca/kksa dh ifjf/k esa vkus okys Hkouksa dk iz'keu ugha fd;k tk ldsxkA ¼10½ bl /kkjk ds vUrxZr voS/k dkWyksuh esa fufeZr Hkouksa ds iz'keu dh dkjZokbZ ugha dh tk;sxhA cfYd ,sls Hkouksa ds iz'keu ds laca/k esa e/; izns'k uxjikfydk ¼dkyksukbZtj dk jftLVªhdj.k] fucZa/ku rFkk 'krsZa½ fu;e] 1998 ds izko/kkuksa ds vUrxZr gh dkjZokbZ dh tk ldsxhA” In the present case, as per the petitioner it has submitted an application to Municipal Corporation for receiving fire NOC. This Court had assigned detailed W.P.No.2002/10 7 reasons in W.P.No.1750/2010(Atul Agrawal Vs. Municipal Corporation & Anr.) and held that the report of the District Judge is not binding on the petitioner because no notice was issued by the District Judge to the affected person before concluding the matter. In the present case also, the District Judge did not issue any notice to the petitioner and held that the case of the petitioner could not be compounded because the petitioner did not receive fire NOC, however, the petitioner submitted an application, hence, the report of the District Judge is not binding on the petitioner because the petitioner has not been given any opportunity of hearing by the District Judge. Looking to the aforesaid facts of the case, the petition of the petitioner is disposed of with the following directions :- i) The petitioner shall comply all the terms and conditions of the order of compounding and it shall deposit the compounding fee within a period of three months from the date of receipt of the copy of the order. ii) The Municipal Corporation shall also pass an appropriate order on an application submitted by the petitioner W.P.No.2002/10 8 for fire NOC and verify the fact as to whether the petitioner is entitled the fire extinguisher or not. iii) If the petitioner complies the direction issued by this Court within three months then the Corporation shall not enforce the impugned notice regarding removal of encroachment. With the aforesaid directions, this writ petition is disposed of. No order as to costs. (S.K.Gangele) (Sheel Nagu) Judge Judge Pkm