Indore Municipal Corp. & Anr vs Hemalata & Ors

NOT REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5031 OF 2005

Indore Municipal Corporation & Anr. ... Appellants

Vs.

Dr. Hemalata & Ors. ... Respondents

JUDGMENT

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 1.5.

(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.

9

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)

New Delhi; ............................J. February 24, 2010. (Aftab Alam)