Indore
Municipal Corp. & ANR. Vs. Hemalata & Ors. [2010] INSC 144 (24 February
2010)
Judgment
NOT
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO.5031 OF 2005 Indore Municipal Corporation & Anr. ... Appellants
Dr. Hemalata & Ors. ... Respondents
R.V.RAVEENDRAN,
J.
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
(i) The land can be used for residential-cum-commercial use, if Municipal
Corporation approves the building plans.
(ii) The
ground coverage area (covered area) will be 33% of the land area; and the floor
area ratio will be (iii) The height of the building will not be more than 12.0
M.
(iv)
Space for parking should be provided as per the ratio specified in Land
Development Rules with reference to the floor area of construction.
(v) Open
Margin Space should be provided as per development Rules, that is 4.5M on the
front (Western) side, 3 M on the east, 6 meters on the north and on the south
(Mahatma Gandhi Road).
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.
2. In
pursuance of it, development and construction work was commenced on 30.5.1997.
By communication dated 31.5.1997, the Joint Director, Town and Country Planning,
amended condition No. (v) of the permission letter dated 7.2.1995 by confirming
that the Department had no objection for the construction being made with the
front side of the building being on the M.G. Road, (that is southern side), and
consequently leave a marginal open space of only 3 M. on the western side. The
said communication also mentioned that having regard to Rule 3 56(6) of Land
Development Rules and Table 5 thereunder, for buildings of a height of more
than 10 M. (but less than 15 M.), the open space on both sides and at the rear
should be 3 M. and therefore, the department had no objection for modifying the
approval of the building plan by keeping the margin space on the western side,
(that is on the Fiftysix Shops Road) as 3 M. The Municipal Corporation by its
letter dated 7.6.1997 granted permission to proceed with the construction work
as per Dakhla No. 613 dated 13.5.1997 making it clear that there will be no
construction upto a depth of 75 feet from M.G. Road front. When the building construction
reached plinth level, a notice dated 10.6.1998 was given by the owners for
inspection of building. Accordingly, a joint inspection was conducted by the
Joint Director, Town & Country Planning and the Building Officer of the
Municipal Corporation on 13.11.1998. Their report in regard to such inspection
submitted to the Municipal Corporation and the Director of Town & Country
Planning confirmed that there was no objection for the setback area on the
western side (on the side of Fiftysix Shops Road) being reduced to 3 M, in
accordance with Rule 56(6). The report also recorded that the margin open space
(setbacks) were as under:-
________________________________________________________ S.No. Direction As per
sanction On the spot -----------------------------------------------------------------------------------------
1 On the North 6.0 Mtrs. 6.0 Mtrs.
2 On the
South 23.0 Mtrs. (23+12) 35.0 Mtrs.
3 On the
West 3.0 Mtrs. 3.0 Mtrs.
4 4 On
the East 3.0 Mtrs. 3.05 Mtrs.
3. On
5.3.1999, the respondents notified the Municipal Coporation that the structure
was completed and requested for a service certificate to enable them to apply
for service connections. At that stage, the Building Officer issued a show
cause notice dated 13.4.1999 and 24.4.1999 to the respondents alleging the
following irregularities/violations in construction:
(i) the
margin area on the western side (Fiftysix Shops Road) ought to have been 4.5 M.
as the front elevation was stated to be towards the side of the said Fiftysix
Shops Road. But by suppressing this fact, the respondents had obtained approval
for 3 M. setback instead of 4.5 M.
setback,
from the Town & Country Planning Department, contrary to the provisions of
the Madhya Pradesh Bhumi Vikas Rules, 1984 (`Rules' or `Land Development
Rules', for short).
(ii) What
was sanctioned was a construction area of 4373.39 sq.M., service area of
2998.79 sq.M. and balcony area of 465 sq.M. As the land area was 3601.7 sq.M.
out of which 45.72 sq.M. were left for road widening, the respondents were
entitled to coverage of 33% of 3555.98 sq.m. which meant that the area that
could be constructed in each floor was only 1173.43 sq.m. and for a permissible
FAR of 1.5, respondents were entitled to construct in all 5333.97 sq.M. But the
total constructed area including service area and covered balcony was 7837.18
sq.m. and thereby the FAR was increased from 1.5 to 2.20 contrary to the rules.
5 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:
___________________________________________________________
Sl.No. Floor Constructed area Actual constructed Remarks as per sanctioned area
on the spot building map
_____________________________________________________________________
1. Parking
and (Basement) Utilities 2335 sqm --- 2335 sqm
2. Lower
1172.33 sqm 1093.84 sqm Less than sanctioned Ground
3. Upper
1172.66 sqm 1104.97 sqm Less than sanctioned Ground
4. First
1172.78 sqm 1136.47 sqm Less than sanctioned Floor 6
5. Second
1172.78 sqm 1136.47 sqm Less than sanctioned Floor
____________________________________________________________________
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 :
(i) The
respondent shall not have shutters of any shops in their building opening on to
the Fiftysix Shops Road and the respondents shall construct a wall towards the
said Fiftysix Shops Road with only two openings for pedestrians and shall not
use their building with any doorways towards the Fiftysix Shops Road.
(ii) The
respondent shall demolish 647.64 sq.m. of excess area of construction as only
1815.16 sq.m. of the constructed area could be considered as the service area.
(iii) The
sanction of Map (Dokhala No.825) by the Municipal Corporation permitting
respondents to construct shops on all floors, was violative of the land use
provision, and therefore the respondent shall construct the residential units
on the second floor.
7 (iv)
The respondents shall amend the plans incorporating the above and get a
sanction of the amended plans, after demolition of the excess area.
5. The
said order was challenged by the respondents in a writ petition before the High
Court. A learned Single Judge of the High Court by order dated 26.4.2001
allowed the writ petition and quashed the show cause notice dated 13.4.1999 and
the order dated 11.4.2000. He held that the two inspection reports by the
officers of the Municipal Corporation and Town and Country Planning Department
established that there were no violations and the construction was in
accordance with the sanctioned plan and there was no justification to issue
such show-cause notice or pass an order directing demolition. The appeal filed
by the Municipal Corporation was dismissed by a Division Bench by the impugned
judgment dated 22.11.2004.
6. The
said judgment is under challenge in this appeal. The appellant raised the
following four contentions before us :
(i) The
sanction of the development/construction plan for commercial use as against
residential-cum-commercial use was contrary to the Rules and the direction in
the order dated 11.4.2000 that the premises should be converted to
residential-cum-commercial use was justified.
8 (ii)
The direction to close the openings and construct a compound wall on the
Western side, (that is facing the Fiftysix Shops Road) was justified as the
respondents had left a set back of only three meters on the western side and
therefore it could not be treated as the frontage but only a side of the
building.
(iii) As
the construction made by the respondents was in excess of the permissible FAR,
the excess area of 647.64 sq.m. had to be demolished.
(iv) The
interpretation of the High Court in regard to section 299 of the Madhya Pradesh
Municipal Corporation Act, 1956 (`Act' for short) was erroneous.
Re :
Contention (i)
7. The
appellants contend that the use of the premises exclusively for commercial
purpose would violate the Land Development Rules, which require the land use to
be in conformity with the development plan. It was contended that the initial
sanction by the Town and Country Planning Department was for construction of
residential-cum-commercial building;
that
though the Municipal Corporation had sanctioned a plan for construction for
commercial purposes on 21.2.1995, renewed on 13.5.1997, at the time of renewal
dated 16.4.1998, it was made clear that the permission was for
residential-cum-commercial purposes; and that in deviation thereof, the
respondents had constructed a commercial building instead of
residential-cum-commercial building.
8. The
respondents submitted that this alleged irregularity was not the subject-matter
of the show-cause notice; that they never disputed the fact that the sanction
was for residential-cum-commercial use; and that as the actual completion
having been held up on account of the show-cause notice and the order dated
11.4.2000 and as occupancy certificate is yet to be issued, the question of the
building being put to any objectionable user does not arise. It was submitted
that only if the respondents failed to use the building in accordance with the
sanctioned/permitted user, there can be a cause to take action against them.
9. The
fact that the sanction is for a residential-cum-commercial purpose, is not
disputed by the respondents. They have never claimed that they will use the
building contrary to the permissible user. Even before the completion of the
construction and obtaining of occupation certificate, without issuing a
show-cause notice alleging such misuse, an order has been issued alleging a
violation of the permitted user. There is no occasion for the second appellant
to assume that the respondent is likely to violate the sanctioned user. After
the issue of occupancy certificate, if there is any violation of sanctioned
use, it is always open to the Municipal Corporation to take appropriate action
in accordance with law at that stage. The finding in the order dated 11.4.2000
that there has 10 been a violation of the Rules in this behalf, is unwarranted
and at all events premature.
Re :
Contention (ii)
10. The
Town Planning Department granted the planning permission requiring the
respondents to leave margin open space of 3 m. on the Eastern and Western
sides, 6 m. on the Northern side and open space as required by the rules on the
southern side vide the Planning Permission dated 7.2.1995 as amended by order
dated 31.5.1997. Rule 56 of the Rules deals with exterior open spaces.
Sub-rules (1), (2) and (3) deal with residential buildings. Sub-rule (5)
provides that the open spaces mentioned in sub-rules (1) to (3) shall apply to
residential buildings, up to a height of 10 m. The building of the respondents
is a residential-cum- commercial building of the height of 12 m. Therefore, the
provisions of sub-rules (1) to (3) of Rule 56 will not apply. Sub-rule (6) of
Rule 56 provides that in respect of all buildings of a height of above 10 m.,
the open spaces on the sides and the rear, shall be as given in Table 5 and
spaces shall be governed by Rule 62(a), depending upon the height of the
building. Table 5 requires that in regard to buildings of a height of more than
10 m. (but less than 15 m.) the margin open space to be left around the
building, except on the front side, shall be 3 m. It is evident from the order
dated 31.5.1997 of the Joint Director that it had sanctioned a 11 marginal open
space on the western side as 3 m. As the Southern side will be the front of the
building (facing M.G. Road) and the western side will be one of the sides of
the building, the margin on that side should be only 3 m. It is thus seen that
the margin open space required to be left on the Western side both under the
rules and as per the sanction granted by the Town and Country Planning
Department and the Municipal Corporation was only 3 m. The assumption of the
appellants that if any doors are opened on the western side, the western side
will become the front side of the building and in that event, there should be
4.5 m. setback on that side, is without basis. Similarly the assumption of the
appellants that if the western side should be treated as one of the sides of
the building and not the front, there cannot be any doorways on that side is
also equally baseless.
11. The
property has roads on two sides that is, on the south and the west. The
sanctioning authority had accepted that the frontage is to the South and in
fact required that there should not be any construction to a depth of 75 ft. on
the southern side, which has been complied with. The rules do not contain any
provision that the entrances or doors should be only on the front side or that
there cannot be any entrances on other sides.
In fact,
Rule 14 provides that no permission shall be required for opening any doors on
any side. Therefore, the insistence by the Municipal 12 Corporation that the
open margin space on the western side should be 4.5 m. nor require that no door
or shutter on the western side of the building, is not in pursuance of the
Rules and in fact, unreasonable. It follows therefore that the order dated
11.4.2000 directing the respondents to close all doors on the western side and
to construct a compound wall on the western side, is wholly unauthorised,
arbitrary and unreasonable.
Re :
Contention (iii)
12. The
extent of construction is a question of fact. The learned Single Judge and
Division Bench after examining the records have concluded that there was no
excess construction. Therefore, this Court re-examining the said question of
fact does not arise. However, as elaborate arguments have been addressed with
reference to the documents, we will briefly refer to them. The sanctioned plan
enables and authorises the respondents to construct a building with a plinth
area of 1172.78 sq.m. The plan also sanctions service areas. The sanctioned
building plan permits construction of about 1173 sq.m in each floor, that is
the lower ground floor, upper ground floor, first floor and second floor. It is
also not in dispute that the actual constructed area is only 1093.84 sq.m.,
1104.97 sq.m., 1136.47 sq.m. and 1136.47 sq.m. in the said four floors. Thus
the actual constructed area in each of the floors is less than the permissible
and sanctioned area. Sanctioned building plan also permits construction 13 of a
basement with parking and utilities measuring 2335 sq.m. and the actual
constructed area is the same without any excess.
13. A
joint inspection report dated 1.11.1999 by four senior officers of the
Municipal Corporation and four officers of the Directorate of Town & Country
Planning confirms that the area constructed is less than what was sanctioned
and that there is no violation. In view of it, the allegation of the Building
Officer in the impugned notice and order that there was 647.64 sq.m of excess
construction, is without basis.
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.
15.
Learned counsel for the appellants submitted that the appellants had appointed
a private agency to measure and submit the total constructed area and as per
their report, the actual constructed area had exceeded the permissible
constructed area and they sought permission to produce the said report as
additional evidence and the Division Bench erroneously refused to accept the
same. As many as eight officers, that is four officers of the Municipal
Corporation and four officers of the Town and Country Planning had held
detailed joint inspection on 27.10.1999 to 30.10.1999 wherein the actual
constructed area was recorded in detail.
The
inspecting officers included the Building Officer of the Municipal Corporation
and the Joint Director of the Town & Country Planning. It is of some
interest to note that the Building Officer (second appellant) who prepared the
said inspection report after four days of extensive measurement, is the same
officer who passed the impugned order dated 15 11.4.2000. The appellants never
contended that the said joint inspection report was erroneous. When the said
report has been acted upon and accepted, there is no justification for the
appellants to get a private report during the pendency of appeal before the
High Court to contend that the actual constructed area was marginally more than
the sanctioned constructed area. Obviously, the appellants cannot say that the
inspection report prepared by the second appellant showing the actual
constructed area is to be ignored. The Division Bench of the High Court rightly
rejected the request of the appellant to produce the said private report as
additional evidence.
Re :
Contention (iv)
16. The
last contention relates to the power of Municipal Commission under section 299
of the Madhya Pradesh Municipal Corporation Act, 1956 (`Act' for short). The
High Court has held that the power to direct modification of the sanctioned
plan can be used by the Commissioner before the work has been commenced and the
directions given on 11.4.2000, almost at the completion of the construction of
the building, was contrary to the provisions of section 299 of the Act.
17. The
appellants contended that section 299 enabled the Commissioner to direct
modification of the sanctioned plan at any time 16 before actual completion and
issue of completion certificate. The respondents on the other hand submitted
that section 299 consists of two parts and that both parts contemplate the
Commissioner acting before the work is commenced. It is submitted that the
first part of section 299 enables the Commissioner to revoke the permission or
direct modifications before the work has commenced and that the second part of
the section enables the Commissioner to direct that the work shall not be
proceeded with unless and until all questions connected with the respective
location of the building and street has been decided to its satisfaction. It
was further submitted that the first part of the section clearly states that
any revocation should be before the work has commenced; that the section also
implies that the power under the second part should be exercised before the
commencement of the work, as it is related to the location of the building and
the street; and that if the dispute is not in regard to the location of the
building or the street, the question of exercising power under second part of
section 299 does not arise.
According
to them, once a building has been sanctioned and the work has been commenced,
after identifying the location and street, the Commissioner has no power to
revoke or modify the sanction under section 299 of the Act, though he may have
such power under some other provision, for other reasons. It is further
submitted that where a sanction is given by the Department of Town and Country
Planning, the 17 Commissioner of the Corporation or a Building Officer of the
Corporation cannot revoke or modify it. It is unnecessary to examine the scope
of section 299 of the Act in this case as it does not arise for our
consideration.
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.
.............................J. (R V Raveendran)
............................J.
New Delhi;
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