Kar Salahkar Kalyan Samiti vs Municpal Corporation Gwalior

Heard. The petitioner has filed this petition against the notice in regard to removal of encroachment, Annexure-P/1.

The petitioner-society is a society registered under the M.P. Societies Registrikaran Adhiniyam, 1973. The petitioner-society applied for permission for construction. Thereafter in the year 1995, the Municipal Corporation granted permission to the petitioner-society, however, in the year 2006, the Municipal Corporation informed the petitioner-society that it had contravened the conditions of permission granted by the Municipal Corporation for construction.

Thereafter the State Government issued a notification and added Section 308B 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 vide order dated 22/05/2006 and directed to deposit an amount of Rs. 16,47,600/- as compounding fee.

The Municipal Corporation in its reply submitted that the Corporation has compounded the matter in accordance with the instructions issued by the Government. It has further been submitted that the compounding fee has been determined on the basis of detailed calculations. A chart to this effect has been filed along with the reply. It has further been submitted that the petitioner has made construction of shops in the basement, which are not permissible.

The State of M.P. inserted Section 308B 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 unauthorised construction. The relevant Section is as under :-

308-B. Relaxation in compounding the unauthorised construction.- (1) Notwithstanding anything contained in Section 308A 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 :-

(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 u/s 308B of Municipal Corporation Act. As per the aforesaid circular the Commissioner authorize to pass an order of compounding under certain circumstances, which are as under :-

From the aforesaid circular and the provisions of Section 308B of the Municipal Corporation Act, 1956, it is clear that the user of the land and the area cannot be changed and if there is change of user by a person then the matter cannot be compounded. In the present case, the petitioner has made construction of shops in the basement. In such circumstances, the respondent-Municipal Corporation has rightly directed the petitioner to remove the shops from the basement which have been constructed by the petitioner.

Apart from this, the Division Bench of this Court vide order dated 4-8-2008, disposed of the aforesaid W.P.No.3178/2006(PIL) (Sardar Joginder Sing Vs. State of M.P. & Ors.) 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 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 u/s 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 Corporation also levied a compounding fee of Rs. 16,47,600/-. The reasons in regard to calculation of the compounding fee has been given by the Corporation and a copy of which has been filed along with the reply.

This Court under Article 226 of the Constitution cannot calculate the fee. The Government has provided facility to the persons, who have made illegal construction to compound the matter with certain parameters. The facility was provided for specific period. The Corporation has calculated the compounding fee in accordance with the guidelines issued by the Government. This Court has no expertise to recalculate the fee. If there is any grievance to the petitioner after depositing the aforesaid amount the petitioner can take the matter in an appeal before the appropriate authority in accordance with the provisions of Municipal Corporation Act, 1956. However, looking to the nature of the case, in our opinion, it is obligatory on the part of the petitioner to deposit the compounding fee and comply the conditions laid down by the Corporation in the order of compounding.

In this view of the matter, the writ petition is disposed of with a direction that if the petitioner deposits the amount of compounding as mentioned in Annexure-R/I and comply the terms and conditions of removal of certain constructions within a period of six weeks from today, then the Corporation shall not take any action in accordance with the notice Annexure-P/1. If the petitioner fails to comply the aforesaid direction, then the Corporation is at liberty to act in accordance with the notice Annexure-P/1. Petition is disposed of accordingly. No order as to costs.