Rakesh Sharma & Ors vs State Of M.P. & Ors

Verandah, in total 90 sq.ft. area and has in front a 5 ft. wide footpath and then a public road. In the year 1975, notice was issued by the Municipal Corporation of Gwalior to the shopkeepers proposing to increase the rent from Rs.7/- to Rs.220/- per month. However, on 18.03.1977, the State of Madhya Pradesh as well as the Municipal Corporation, Gwalior agreed to increase the rent only by 7% from the original rent and also clarified that the enhanced rent would cover area in front of the shops and no additional charges were to be paid in that respect. On 24.05.1994, the Municipal 2 Corporation passed Resolution No.40 by which, area of the shop was treated as 90 sq. ft. including the verandah.

(b) On 28.02.1999, a public interest litigation petition, being Writ Petition No. 310 of 1999 was filed by a lawyer, G.S. Tomar, against encroachment and erection of wooden stalls by the Municipal Corporation over the land of the Madhya Pradesh Housing Board in Nazar Bagh Market, which is described as "the heart of the city". By order dated 15.12.2000, the High Court directed that the said structures erected by the Municipal Corporation would be removed. The petition was listed before the Division Bench on various dates and several directions were issued by the High Court.

(c) During the pendency of the writ petitions, the High Court, by order dated 04.07.2003, appointed District Judge (Vigilance) as a Local Commissioner in respect of the illegal encroachments and constructions and directed the Municipal Corporation to continue with the removal of encroachment from the footpaths and public streets which were identified by the District Judge (Vigilance). It further directed that objections, if any, would be submitted to the District Judge.

(d) Against the order dated 04.07.2003, some of the shopkeepers of other markets filed Special Leave Petition No. 12446 of 2003 before this Court wherein this Court issued notice and stayed the demolition until further orders.

(e) On 25.08.2003, the Local Commissioner submitted his report before the High Court and the High Court directed that it may not be open to the parties to raise any further 4 objections to the report. Against the said order, the appellants herein filed S.L.Ps. before this Court which were directed to be tagged with the earlier S.L.P.(C) No. 12446 of 2003. This Court disposed of all the petitions on 25.10.2004 by directing the High Court to dispose of the writ petitions as expeditiously as possible after taking into consideration the objections of the appellants and directed to maintain the status quo as on that date till the disposal of the writ petitions.

(f) On 19.01.2005, the High Court directed the Municipal Corporation to submit a plan and map for development of Gandhi Market as a shopping complex having first and second floor and a parking area. As the appellants agreed to pay Rs.1 lakh each in four instalments for construction of the first floor shops, the High Court further directed that the amounts deposited by the shopkeepers would be kept in a separate fund by the Corporation and its use would be considered at the time of final hearing.

(h) Against the order dated 24.03.2006, the shopkeepers filed applications before the High Court for recalling the order and for refund of the amount deposited by them with interest and the same were dismissed by the High Court on 05.05.2006. Since the shopkeepers were not willing for the reconstruction of the market, the petitions were directed to be listed along with W.P.(C) No. 310 of 1999. The Commissioner was also required to give a proposal for reconstruction. By the impugned order dated 18.01.2008, the High Court disposed of all the writ petitions with various directions as found in paragraph 8 of the impugned order.

shopkeepers are not going to loose anything, on the other hand, the Municipal Corporation has assured that they will be provided alternate accommodation till the completion of the fresh construction and after new construction, they will be provided convenient shops in the ground floor itself with more facility for parking, accordingly, they prayed for dismissal of all the above appeals as devoid of any merits.

commercial complex. In this process of construction, it was planned to shift temporarily the present shop keepers to some other nearby places.

27) It is further seen that the present commercial area of the appellants/shop keepers is 60 sq. ft. which has been converted by encroaching the area of verandah and converted the same into 90 sq. ft area. The new shop of 60 sq. ft. size is to be given to 252 present incumbents of Gandhi Market. It is highlighted that to construct the building to the height of 12.5 metres having 3 layers of basement for parking, the ground floor shall have 252 shops which shall be allotted to the 21 present incumbents of Gandhi Market and other floors shall be at the disposal of Municipal Corporation, Gwalior.

29) The next submission of Mr. Gupta relates to applications filed by the appellants before the High Court for recalling the order dated 24.03.2006 and also seeking clarification on the same order as well as another application for refund of the amount deposited. Admittedly, one application was rejected on 05.05.2006 and it is not clear how the other applications are kept pending even after disposal of main writ petitions.

We fully endorse the above view. Though an argument was advanced that the permission granted by Joint Director, Town and Country Planning, Gwalior in his proceeding dated 05.12.2007 to the Commissioner, Municipal Corporation, Gwalior regarding reconstruction of Gandhi Market, Gwalior 24 was objected to by the Director and further approval of the State Government is required, inasmuch as the Joint Director is the officer competent, we hope and trust that no fresh construction would be carried out without the authority of the person concerned and contrary to the statutory provisions/regulations, accordingly, we reject the said contention also.

32) Under these circumstances, we are unable to agree with any one of the submissions made by the appellants, on the other hand, we are in entire agreement with the stand of the respondents and reasonings and conclusion arrived at by the High Court. We direct the respondents, particularly, the Municipal Corporation, Gwalior and the officers concerned to implement the directions of the High Court within the parameters of the statutory provisions considering the interest of the general public as well all the shop keepers of the existing market. In view of the disposal of the civil appeals, Municipal Corporation is free to proceed with the construction as directed in the impugned order of the High Court and in the light of the above observations, as early as possible, and we 25 also direct that all the directions of the High Court shall be adhered to. It is further directed that as soon as construction up to ground floor level is completed along with the required parking facilities at the basement level those shops are to be allotted to the old shop keepers in the Gandhi Market within a period of six months after completion of such construction, unless an individual shop keeper becomes ineligible for the known reason.

33) Consequently, all the appeals fail and are accordingly dismissed. In view of the same, interim stay granted by this Court on 17.10.2008 shall stand vacated. No order as to costs.

AUGUST 30, 2011.