Mahendralal Saluja and Another vs Municipal Corporation Bilaspur

Hon''ble Shri Prashant Kumar Mishra, J.—Petitioners have prayed for issuance of a direction to the Municipal Corporation, Bilaspur (hereinafter referred as `the Corporation'') to remove all illegal construction made over Khasra No. 488 and 214 situated in Shiv Talkies Bus Stand Road between present Shyama Prasad Mukherjee square to Ravindra Nath Tagore square with a further direction to the Corporation to widen the road from Shyama Prasad Mukherjee square to Ravindra Nath Tagore square to the extent of 115 ft. The origin of the dispute goes back to the year 1987 when Miscellaneous Petition No. 2450/1987 was filed by three individuals objecting to the Corporation''s decision to construct shops on the said Khasra numbers on the ground that the said land is Nazul land shown as road in the Master Plan. The writ petition was eventually disposed of on 05/03/1997 by Annexure P/7, after recording statement of the Corporation that they would leave atleast 85 ft. area of road and seek permission from the State Government to use the rest of the plot for making commercial complex. The Division Bench further observed that the Corporation will act in public interest and review the proposal if necessary in public interest. Second writ petition bearing W.P. No. 1408 of 1998 was preferred by five petitioners including both the present writ petitioners. It was stated in the said second writ petition that an incorrect statement was made in the earlier round of the writ petition that proposed width of road is 80 ft., whereas according to Master Plan it was 35 meters (115 ft) (para 5.18 of the earlier writ petition of the year 1998). It was alleged in the said writ petition that the Corporation is widening the road up to 115 ft only on one side and not on either side from the centre and the Corporation is likely to proceed to construct the shop by encroaching over public road in an illegal manner. In the first writ petition as well as subsequent writ petition interim orders were issued against the Corporation restraining it from constructing the shops and thus right from the year 1987 till date the shops in question have been constructed half way and have not been completed. Writ Petition No. 1408 of 1998 came up for hearing before this Court on 09/02/2009 and on the said date the following order has been passed by this Court, on the basis of undertaking given by the Corporation :-

Shri Kachhawaha, learned counsel appearing for the respondent No. 5- Corporation, on the basis of averments made in the affidavit dated 20th January, 2009 of the Officer-in-Charge of the Municipal Corporation, Bilaspur, which reads as under :-

That, after reorganization of the State of Madhya Pradesh, the State of Chhattisgarh came in existence on 01.11.2000 and for beautification of the said road, the Answering Respondent now realised that, the said area requires some space for parking and as per the instruction of the Higher Authorities, the Corporation is ready to remove the present constructed shops, allotted earlier in the name of other Respondents and the Answering Respondent is also ready to refund the amount, which has been deposited in the Corporation against the allotment of the shops with interest.

(Emphasis supplied)

In the above background the present writ petition has been filed for the relief claimed as mentioned above.

Learned counsel for the petitioner would submit that in spite of submitting undertaking that the Corporation is ready to remove the present half way constructed shop allotted earlier to the allottees and is also ready to refund the amount which has been deposited in the Corporation against the allotment of shops with interest, nothing has been done and the under constructed shops are standing on the road causing obstruction in movement of traffic and giving rise to other illegal activities. He would further submit that when the issue has been settled after submission of undertaking, the Corporation should have honoured and removed the construction and widened the road yet no action has been taken in spite of submission of representation in this regard presumably for lack of funds to compensate the allottees.

Learned counsel for the Corporation would submit that the State Government is a necessary party in the writ petition and the Corporation is running short of fund of Rs. 2 Crores which needs to be paid to the allottees. He would argue that letters have been sent to the State Government and in fact one of the allottee namely Shri Sunil Chhabra has issued a communication to the Corporation that he is relinquishing his right for refund of amount.

Shri Koshy, learned counsel appearing for interveners would argue that the writ petition has been filed without impleading them and it appears there is collusion between the petitioners and Municipal Corporation. He would submit that the petitioner has approached this Court after more than three years when the earlier order was passed and in the grab of fresh writ petition they are seeking execution of the earlier order.

Having heard learned counsel for the parties and having gone through the documents available in the record, it appears to this Court that the Municipal Corporation has utterly failed in discharging its statutory duties. The under constructed shops are placed in the heart of the city for last 25 years and the present is third round of litigation. Construction has been stayed by the High Court twice earlier and ultimately the Corporation submitted an undertaking which has been reproduced in the preceding paragraph of this order. Once having submitted an undertaking now the Corporation has come forward with a plea that it does not have requisite fund to compensate the allottees meaning thereby that till the compensation is paid it is difficult for them to comply with the undertaking regarding removal of shops which have otherwise been constructed in an illegal manner being contrary to Master Plan.

In the matter of Municipal Council, Ratlam Vs. Vardichan and Others, Hon''ble Supreme Court has held that inaction on the part of the municipality to remove public nuisance on the ground of want of funds is no excuse and the persons affected are entitled to move the Court. Even though, to begin with, the present may not be public nuisance but by lapse of time it has almost become a nuisance for the reason that it has been constructed contrary to the Master Plan which is otherwise affecting widening of road and smooth flow of traffic.

In the matter of Santosh Kumar Mittal and Another Vs. State of Chhattisgarh and others in W.P.(C) 421/2012 while dealing with rights of an individual whose lands has been used for widening of road on account of re- fixing of building line, this Court, vide its order dated 12/03/2012, after referring to Section 305 and 306 of Municipal Corporation Act and after relying on an earlier judgment of M.P. High Court in the matter of Tarabai Vs. Indore Municipal Corporation, Indore reported in 1977 (1) MPWN 321, it has been held thus in paragraph 4 & 5 of the order :-

In the matter of Tarabai v. Indore Municipal Corporation, Indore (1977) 1 MPWN 321 it has been held that setting back by legal fiction shall have the effect of vesting that land in Corporation and such vesting does not depend on payment of compensation. In view of this, it cannot be held that until payment of compensation is made, the authorities are not competent to raise any construction for widening of road or for construction of drain. However, at the same time, every citizen whose land is included in the building line demarcated by the Corporation in accordance with Section 305 of the Act is entitled to receive reasonable compensation as provided under the proviso to Section 305 and u/s 306 of the Act, 1956, though sub Section (3) of Section 306 further provides that in assessing such compensation, regard shall be had to the benefits accruing to that owner from the development of the land belonging to her and affected by such street.

In view of the above position of law, while refusing to restrain the Corporation to widen the road or to construct the drain, it is directed that the respondent Corporation shall ascertain the exact area owned by the petitioner and shall thereafter determine the compensation to which the petitioner is entitled under Sections 305 & 306 of the Act, 1956 on an application submitted by the petitioner in this regard within a period of one month from today along-with a certified copy of this order. The respondent Corporation shall thereafter consider and decide the issue regarding compensation in accordance with law within reasonable time and preferably within a period of six months thereafter.

In the matter of M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu and Others, the Hon''ble Supreme Court has held thus in paragraph 73, 74 and 80 :-

The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised this dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots.

In the present case we find that the builder got an interim order from this Court and on the strength of that order got sanction of the plan from the Mahapalika and no objection from LDA. It has no doubt invested considerable amount on the construction which is 80% complete and by any standard is a first class construction. Why should be builder take such a risk when the interim order was specific that the builder will make construction at its own risk and will not claim any equity if the decision in the appeal goes against it? When the interim order was made by this Court the Mahapalika and the State Government were favouring the builder. As a matter of fact the Mahapalika itself filed appeals against the impugned judgment of the High Court. Perhaps that gave hope to the builder to go ahead with the construction and to take the risk of getting the construction demolished and restoring the part to its original condition at its own cost. The builder did not foresee the change in stand not only of the Mahapalika but also of the State Government. It also, as it would appear, overrated its capacity to manage with the State Government to change the land use of the park. The builder is not an innocent player in this murky deal when it was able to get the resolutions of the Mahapalika in its favour and the impugned agreement executed. Now, construction of shops will bring in more congestion and with that the area will get more polluted. Any commercial activity now in this unauthorised construction will put additional burden on the locality. The primary concern of the Court is to eliminate the negative impact the underground shopping complex will have on the environmental conditions in the area and the congestion that will aggravate on account of increased traffic and people visiting the complex. There is no alternative to this except to dismantle the whole structure and restore the park to its original condition leaving a portion constructed for parking. We are aware that it may not be possible to restore the park fully to its original condition as many trees have been chopped off and it will take years for the trees now to be planted to grow. But a beginning has to be made.

We have noted above that under clause (ix- a) of Section 114 of the Act, it is incumbent on the Mahapalika to make reasonable and adequate provisions by any means or measures which it is lawfully competent to use or to take for the construction and maintenance of parking lots, bus-stops and public convenience.

In the matter of Priyanka Estates International Private Limited and Others vs. State of Assam and others reported in (2010) 2 SCC 27 the Hon''ble Supreme Court has held thus in paragraph 55 and 56 :-

It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder.

Even though on earlier occasions also, under similar circumstances, there have been judgments of this Court which should have been a pointer to all the builders that raising unauthorised construction never pays and is against the interest of society at large, but, no heed has been given to it by the builders. Rules, regulations and bye-laws are made by Corporations or by Development Authorities, taking in view the larger public interest of the society and it is a bounden duty of the citizens to obey and follow such rules which are made for their benefit. If unauthorised constructions are allowed to stand or given a seal of approval by court then it is bound to affect the public at large. An individual has a right, including a fundamental right, within a reasonable limit, it inroads the public rights leading to public inconvenience, therefore, it is to be curtailed to that extent.

11 In both the above matters, M.I. Builders Pvt. Ltd. (supra) and Priyanka Estates International Private Limited and Others (supra) the Hon''ble Supreme Court, after finding that the construction is unauthorized being violative of Master Plan or the Sanction Plan, an order for demolition of the structure has been passed.

In the case in hand the rigor of law would operate more forcefully against Corporation as also against interveners inasmuch as the land on which the shops have been constructed do not belongs to interveners. The shops were constructed contrary to the Master Plan and the compensation to be paid by the Corporation to the interveners is on account of the amount which they have deposited before the Corporation at the time of receiving allotment of shops/land on which construction of shops were to be made. Thus, on the analogy of and on applying the law laid down by this Court in the case of Santosh Kumar Mittal (supra) this Court has no hesitation in holding that non-payment of compensation/refund of amount of lease which the Corporation has earlier received from the interveners would not come in the way of the Corporation in demolishing the shops which are otherwise constructed contrary to the Master Plan.

Thus, the writ petition deserves to be and is hereby allowed with the following directions :-

(i) The Corporation shall demolish the under constructed/half way constructed shops and other illegal construction situated on Khasra No. 488 and 214 on Shiv Talkies Bus Stand Road between present Shyama Prasad Mukherjee square to Ravindra Nath Tagore square within a period of two months from today and shall thereafter widen the road.

(ii) The Corporation shall decide representation filed by the interveners and shall refund the amount paid by the allottees within a period of six months. If any of the intervener desires to settle the matter by accepting allotment of land/shop at some other place or in any other manner, the Corporation would be free to reach such agreed settlement.

In view of the law laid down by the Hon''ble Supreme Court in the case of Municipal Corporation, Ratlam Vs. Vardichand & Others (supra) the Municipal Corporation shall raise funds from the State Government, however, demotion of illegal construction and under constructed shops can not be delayed on this count. With the above direction, writ petition stands disposed of.