Indore Municipal Corp. & Anr vs Hemalata & Ors

The respondents are the owners of property bearing khasra No. 92/2 and 93 of Palasiahana (within the Municipal limits of Indore City) measuring about 0.441 hectares or 3601.4 sq.m. Mohan Lal Khimati and three others, who were originally the owners, made an application for grant of permission for development of the said land by construction of a residential-cum-commercial building, to the Town & Country Planning Department, Indore Division. The Joint Director, Town and Country Planning, by order dated 7.2.2005, granted permission in regard to the building plan for residential-cum-commercial purposes subject to approval of the said building plans by the Indore Municipal Corporation (`Corporation', for short) subject to the following conditions:- 2

Thereafter, on 21.2.1995 the Municipal Corporation granted permission for commercial use by construction and development of the said land as per the building maps.

The respondents gave detailed replies dated 19.4.1999 and 29.4.1999 denying any irregularity in construction. Between 27.10.1999 and 30.10.1999, the completed structure consisting of the basement, lower ground floor, upper ground floor, first floor and second floor, was inspected by a Joint Inspection Team consisting of four officers of the Municipal Corporation (the City Engineer/Building Officer, Zonal Officer, Sub-Engineer and Architect) and four officers of the Town & Country Planning Department (Joint Director, Assistant Director, Senior and Junior Surveyor-cum-Land Measurers). On such inspection, they recorded the area to be constructed as per the sanctioned plan and the area actually constructed by the respondents. It was found that the actual construction did not exceed the sanctioned area. The particulars recorded in the joint report in that behalf are extracted below:

4. The respondent also submitted a complaint dated 4.2.2000 to the State Government stating that the second appellant was biased and even though the construction was in accordance with the sanctioned plan under building permissions, the Building Officer had issued show cause notice dated 13.4.1999 to harass them and cause them loss. Acting on the said complaint, the State Government by communication dated 4.2.2000, suggested to the Municipal Corporation that the issue may be sorted out by posting some other Building Officer. Thereafter, the Building Officer (second appellant) passed an order dated 11.4.2000, directing as follows :

14. When the Department of Town and Country Planning and the Municipal Corporation which are the sanctioning authorities, have sanctioned construction of a building with a basement of 2335 sq.m. and upper floors of 4690.55 sq.m. and the construction is less than the sanctioned area, the question of appellants holding that there was excess construction, does not arise. Further, having regard to the applicable bye- laws, the service area and open balcony area will have to be excluded. The sanctioned plan shows the total area of the plot as 3601.74 sq.m. and as per the permissible FAR, 5402.61 sq.m. could be constructed. The total area constructed is only 4471.75 sq.m and even if the balcony area is included, it will be less than the area permissible as per the FAR. As far as coverage area is concerned, 33% of 3601.74 sq.m. will be 1188.57 sq.m. Even if 45.72 sq.m. left for road-widening is deducted and site area 14 is taken as 3556 sq.m., 33% coverage will be 1173.48 sq.m. The sanctioned plan permits a ground floor coverage of 1173 sq.m. Therefore, neither the land coverage percentage is exceeded, nor the permitted FAR is exceeded, nor the sanctioned construction area is exceeded. The third ground also therefore does not have any merit. The learned Single Judge and the Division Bench considered these aspects and rightly rejected the contention of the appellants.

Re : Contention (iv)

18. The respondents have alleged that some officers of the Municipal Corporation have tried to prevent them from completing and using their building at the behest of some businessmen on the Fifty Six Shops Road, whose business is likely to adversely affected by the completion and functioning of shops in their building. The appellants have denied any malafides or bias and stated that the officers of the Corporation were only doing their duty to implement the municipal rules and regulations. We do not find it necessary to examine or record any finding in this regard, for disposal of this appeal.

19. We find that the appellants have not made out any case to interfere with the concurrent findings of the learned Single Judge and the Division Bench. The appeal is therefore dismissed.