2010 Supreme(SC) 190

2010 (2) Supreme 125
SUPREME COURT OF INDIA
R V Raveendran and Aftab Alam, JJ.
Indore Municipal Corporation & Anr. — Appellants
versus
Dr. Hemalata & Ors. — Respondents
Civil Appeal No. 5031 of 2005
Decided on : 24-02-2010

Headnote:Land Development Rules -Rule 56(6) and Table 5- Respondents owners of property within the Municipal limits of Indore City measuring about 0.441 hectares or 3601.4 sq.m. 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-Order passed by Joint Director, Town and Country Planning, granting permission in regard to building plan for residential-cum-commercial purposes subject to approval of the said building plans by the Indore Municipal Corporation subject to certain conditions-Issuance of show cause notice by Building Officer-Writ petition thereagainst-Single Judge of High Court allowed the writ petition and quashed the show cause notice and the order passed by Building Officer holding that two inspection reports by officers of 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- Appeal filed by Municipal Corporation was dismissed by a Division Bench by the impugned judgment –Appeal- The fact that the sanction was for a residential-cum-commercial purpose, was not disputed by respondents- They had never claimed that they would 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 had been issued alleging a violation of the permitted user- There was no occasion for the second appellant to assume that respondent was likely to violate the sanctioned user- After the issue of occupancy certificate, if there was any violation of sanctioned use, it was always open to the Municipal Corporation to take appropriate action in accordance with law at that stage-Hence finding in the order dated 11.4.2000 that there had been a violation of the Rules in this behalf, was unwarranted and at all events premature- No case made out by appellants to interfere with the concurrent findings of Single Judge and Division Bench-Appeal dismissed. (Paras 7 to 9, 19)

        Land Development Rules -Rule 56(6) and Table 5- Respondents owners of property within the Municipal limits of Indore City measuring about 0.441 hectares or 3601.4 sq.m. 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- Issuance of show cause notice by Building Officer –Challenge thereagainst-The property had 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 had been complied with- The rules did 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 provided that no permission shall be required for opening any doors on any side- Therefore, insistence by Municipal 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, was not in pursuance of the Rules and in fact, unreasonable- Hence held that order dated 11.4.2000 directing respondents to close all doors on the western side and to construct a compound wall on western side, was wholly unauthorised, arbitrary and unreasonable. (Paras 10, 11)

        Excess Construction- The extent of construction is a question of fact- Single Judge and Division Bench after examining the records had concluded that there was no excess construction- The sanctioned plan enables and authorises 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- No dispute that actual constructed area was 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 was less than the permissible and sanctioned area-Sanctioned building plan also permitted construction of a basement with parking and utilities measuring 2335 sq.m. and the actual constructed area is the same without any excess- joint inspection report by four senior officers of Municipal Corporation and four officers of Directorate of Town & Country Planning confirmed that the area constructed was less than what was sanctioned and that there is no violation- In view of it, the allegation of Building Officer in the impugned notice and order that there was 647.64 sq.m of excess construction, was without basis- When the Department of Town and Country Planning and the Municipal Corporation, had sanctioned construction of a building with a basement of 2335 sq.m. and upper floors of 4690.55 sq.m. and the construction was less than sanctioned area, question of appellants holding that there was excess construction, did not arise-Neither the land coverage percentage was exceeded, nor the permitted FAR was exceeded, nor the sanctioned construction area was exceeded- Single Judge and Division Bench considered these aspects and rightly rejected the contention of appellants. (Paras 12 to 14)

       Facts of the Case :

        Respondents owners of property within the Municipal limits of Indore City measuring about 0.441 hectares or 3601.4 sq.m. 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 PlanningDepartment, Indore Division herein in the instant case. An Order was passed by Joint Director, Town and Country Planning, granting permission in regard to building plan for residential-cum-commercial purposes subject to approval of the said building plans by the Indore Municipal Corporation subject to certain conditions. Show cause notice was issued by Building Officer.Writ petition thereagainst was allowed by Single Judge of High Court holding that two inspection reports by officers of 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.Appeal filed by Municipal Corporation was dismissed by a Division Bench by the impugned judgment .

        2. Present appeal has been filed against said order of Division Bench.

       Findings of the Court :

        The fact that the sanction was for a residential-cum-commercial purpose, was not disputed by respondents. They had never claimed that they would 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 had been issued alleging a violation of the permitted user. There was no occasion for the second appellant to assume that respondent was likely to violate the sanctioned user. After the issue of occupancy certificate, if there was any violation of sanctioned use, it was always open to the Municipal Corporation to take appropriate action in accordance with law at that stage. Hence finding in the order dated 11.4.2000 that there had been a violation of the Rules in this behalf, was unwarranted and at all events premature. No case was made out by appellants to interfere with the concurrent findings of Single Judge and Division Bench. Appeal was dismissed

       Result : Appeal dismissed