HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 5118 of 2011
Shrimant Seth Gopal Sao Puran Sao
Digambar Jain Parmarthik Trust, Seoni
- V/s -
Municipal Council, Seoni & Others.
Present : Hon'ble Shri Justice Rajendra Menon.
-------------------------------------------------------------------------------------- Shri G.S. Ahluwalia, counsel for the petitioner.
Smt. Amrit Ruprah, counsel for respondents 1 and 3. Shri S.M. Lal, Government Advocate, for respondent No.2.
-------------------------------------------------------------------------------------- Whether approved for reporting: Yes / No.
Challenging the order-dated 3.3.2011 passed by respondent Nos. 1 and 2, directing the petitioner Trust to stop all construction activity and informing them that the permission granted to them for construction of the building has expired, petitioner has filed this writ petition.
2- Facts in brief indicate that petitioner is a Trust registered under the Public Trust Act and his petition is filed by Shri Preetam Chand Jain, who is secretary of the Trust in question. It is the case of the petitioner that they were having certain open area being Block No.6, Plot No.10/2 in the city of Seoni. As the area was lying vacant and it was not earning any revenue, the Trust passed a resolution and decided to construct a Dharamshala and shops over the said land so that the financial benefit accruing thereof could be utilized for the benefit of the Trust. Accordingly, the Trust sought permission from respondent No.1 2
and vide order-dated 2.2.2009 - Annexure P/1 permission was granted to the petitioner to construct a Dharamshala and shops in the area in question. According to the petitioner, the project was a big one and, therefore, it was required to be executed after obtaining various facilities and infrastructure and this took time as a result the construction activities could commence only in the year 2011 i.e... after a period of more than two years of grant of permission dated 2.2.2009. It is the case of the petitioners that when the construction activities commenced, they received a notice - Annexure P/2 dated 3.3.2011 issued by respondent No.1 indicating that the permission granted to them vide Annexure P/1, on 2.2.2009, is only for a period of one year, it has expired on 2.2.2010 and, therefore, they cannot carry on with the construction. Accordingly, vide order-dated 3.3.2011 - Annexure P/2, they were directed to stop all the construction and that the permission has been cancelled. Petitioner's representation and objections were not considered and, therefore, petitioner has filed this writ petition.
3- Shri G.S. Ahluwalia, learned counsel for the petitioner, inviting my attention to the permission granted to the petitioner vide Annexure P/1 on 2.2.2009 indicated that under the terms and conditions stipulated in the permission vide Clause 9 the words '1 year' in hindi has been scored off and the words '3 (Three)' is indicated, meaning thereby that the construction was to commence within a period of three years. Similar stipulation according to Shri Ahluwalia is contained in Clause 12 of the document dated 2.2.2009, which is also the permission granted to the petitioners. Accordingly, it is the case of the petitioner that in the permission granted itself the period of three years was stipulated and, therefore, the respondents cannot proceed with the impugned action as the permission was to start the construction within a period of three years. That apart, inviting my attention to the provisions of Rule 23 of the M.P. Bhumi Vikas Rules, 1984 (hereinafter referred to as 'Rules of 1984'), it was argued by Shri G.S. Ahluwalia that under Rule 23, the period of starting the construction is three years from the date of grant of permission and, therefore, under the aforesaid statutory rule also it is 3
argued by Shri Ahluwalia that the action of the respondents is illegal. Shri Ahluwalia, learned counsel, submits that the respondents are taking action in the matter on the ground that the permission is covered by provisions of sub-section (7) of section 187 of the Municipalities Act, 1961 (hereinafter referred to as 'Act of 1961'). According to Shri Ahluwalia the said provision will not apply in the case of the petitioner in view of the specific provision of Rule 23 of the Rules of 1984. 4- Respondents have refuted the aforesaid and the respondent Municipal Corporation has filed a detailed reply supported by affidavit of Shri Maqbool Khan, Chief Municipal Officer, Municipal Council, Seoni. From the return filed by the Municipal Council, it is seen that they have brought on record the permission granted vide Annexure R/1 and in the said permission granted the provisions of Clause 9 of the terms and conditions clearly indicate that the permission is granted under section 187(7) of the Act of 1961 and the construction has to commence within one year. Annexure R/1 and P/1 are the same documents. Annexure R/1 is the copy filed by respondent No.1 and Annexure P/1 is a copy filed by the petitioner.
5- On a perusal of the records it is seen that even though in the copy filed by the petitioner, the words 'one year' in hindi is scored off and the words '3 (three)' is mentioned, the same correction is not available in the document - Annexure R/1 filed by respondent No.1. That being so, in the documents filed by the parties there is discrepancy. Under such circumstances in view of the factual dispute between the parties, it is thought appropriate to take note of the legal provisions. Under section 187(7) of the Act of 1961, a permission granted under the said section for building is valid for a period of one year. However, under Rule 23 of the Rules of 1984, the duration for which permission is granted is shown to be 3 years. That being so, the question now would be as to whether the permission granted to the petitioner is covered under section 187(7) of the Act of 1961, or under Rule 23 of the Rules of 1984 ?
6- If the permission granted to the petitioner - Annexure P/1 and Annexure R/1 is taken note of, it would be seen that it was issued on 2.2.2009 and the terms and conditions of the permission are incorporated. There are about 10 terms and conditions stipulated therein and each and every term and condition is pertaining to the provisions of sections 185, 186 and 187 of the Act of 1961. As far as condition No.9 is concerned, this condition is under section 187(7) of the Act of 1961, and it clearly indicates that it is issued under the provisions of section 187(7) of the Act of 1961 and there is nothing in this document to indicate that the permission is granted to the petitioner under Rule 23 of the Rules of 1984.
7- As far as the procedure for granting permission under the Rules of 1984 is concerned, it is seen from the records that for seeking permission under this Rule an application for development of a building is to be submitted under Rule 16 and under Rule 16 the permission is to be sought in accordance to the form appended to the Rule i.e... Appendix A. Thereafter, the sanction and the drawing as contained in Rule 7 are to be complied with and the final permission for construction is granted under Rule 27 - Appendix D. If the permission granted to the petitioner is taken note of, it is seen that it is not in the form - Appendix D to Rule 27 of the Rules of 1984, and the conditions stipulated in the permission are referring to the provisions of sections 185, 186 and 187 of the Act of 1961. That apart, if the permission was sought for by the petitioner under the Rules of 1984, then the petitioner is required to submit an application for permission under this Rule in the form prescribed under Rule 16 - Appendix A alongwith various information contained in Rule 17 and it is not the case of the petitioner that the permission was granted to the petitioner on the basis of the application submitted under Rule 16 of the Rules of 1984, after complying with the requirement of Rule 17. On the contrary, the documents available on record, particularly the permission granted vide Annexure P/1 and Annexure R/1, indicate that the permission was under section 187 of the Act of 1961 and the provision of starting the construction within one 5
year contemplated under section 187(7) was clearly stipulated in the permission - Annexures P/1 and R/1, vide condition No.9 8- In that view of the matter, even if there is some dispute between the parties with regard to the figure 'one or three' in the permission, as the statute contemplates a provision wherein the permission granted is to be in force for a particular period, this Court in contravention to the same cannot hold that the permission granted to the petitioner is for a period of three years. It is clear from the records that the permission was granted to the petitioner under section 187 of the Act of 1961 and in view of sub-section (7) to Section 187, as the petitioner did not commence construction within one year of its sanction, the respondents have not acted in a manner, which can termed as illegal or contrary to the statutory rules.
9- As the action of the respondents is in accordance to the statutory provisions, no case is made out for interfering into the matter on the grounds raised.
10- Accordingly, finding no case for interference on the grounds raised, the petition is dismissed.
( RAJENDRA MENON )