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2011 Supreme(MP) 784
2011 (3) JLJ 265
Shantanu Kemkar and Prakash Shvivastava, JJ.
Gopal Dubey
v.
The Municipal Corporation, Indore and others
Writ Petition (PIL) No.2762 of 2006 (Indore)
Decided on : 21.10.2011.
A.K. chitale with Anand Bhatt for petitioner; Anand Agrawal for respondent No.1; Manoj Dwivedi, Additional Advocate General, with Ms. M. Raveendran, Deputy Government Advocate,
for respondents No.2 to 4; Sandeep Kochatta for respondent No.5.
Headnote:Constitution of India -- Art.226 -- M.P. Municipal Corporation Act. 1956 -- S.81A -- construction over Government land without sanction -amounts to illegal construction -- but, cannot be demolished on this sole ground if fulfils the criteria of larger public interest -- direction to constitute a committee to enquire and take the decision accordingly.
Held:
Keeping in view the aforesaid position in law and also the specific stand of the petitioner that the retention wall and the slab on the nala in the present case has not been constructed for the benefit of any particular individual but -it is stated to be constructed for the benefit of the public at large, therefore, we are of the opinion that the interest of justice will be served if the respondents constitute a committee of at least three high officials to take a decision as to whether it would be in the public interest to demolish the impugned construction or to take over the control of the impugned construction and to utilise it for the benefit of general public at large. While taking the said decision, the committee will be governed by the criteria of the larger public interest. However, we make it clear that if the committee reaches to the conclusion that the existence and continuation of the impugned construction is not in the public interest, then it would be open to them to remove it in accordance with law. 1995 Supp.( 4) SCC 426, (2005)7 SCC 110 and (2008)13 SCC 506 followed. (2009)8 Supreme 30 and (2009)7 SCC 450 distinguished. [Para 21]
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¼iSjk 21½
1. This Public Interest Petition is by one of the resident of Suniket Apartment in Shreenagar Extension Colony, Indore for protecting the retention wall and slab which has been constructed in the adjoining Nala.
2. In brief, the case of the petitioner is that Suniket Apartment was constructed by respondent No.5 Kalani Industries Ltd. on the land adjoining to the nala. The residents of the apartment and the builder proposed a plan to build a retention wall and slab to cover the nala and sought permission for that purpose from the respondent No.1 Municipal Corporation, Indore which was granted by the Corporation vide letter No.7038/CE/l3.12. 1999. A report from the Nazool Office was obtained in respect of the width of nala at different places and the permission from Nazool Officer was also obtained vide letter No.935/01 dated 1.8.2001 which on the very next date vide letter No.948/2001 dated 2.8.2001 was cancelled. The construction of the retention wall and slab over the nala was done on the basis of the said permission and a garden has been developed on the covered portion of the nala. The respondents were taking steps to remove the slab constructed on the nala on the ground that it had obstructed the flow of nala causing inconvenience to the adjoining areas, hence. the petitioner approached this Court with the prayer to restrain concerned respondents from taking any action for removal of slab constructed over the nala. Alternatively a prayer has been made for constituting a technical committee to study if the construction of slab on the top of the nala has in any way affected the flow of the nala.
3. The respondent No.1 Municipal Corporation, Indore by filing the reply has taken the stand that on account of the construction of walls on both the sides and putting of the slab, the natural flow of nala is obstructed due to which rainy water is assembling and causing inconvenience. Their further stand is that the construction on the nala has been done without any sanction and without complying with the condition and requirement contained in the letter dated 13.12.1999. They have taken a categorical stand that the Corporation had not granted any permission to construct the retention wall or the slab and the entire construction is illegal. They have also disputed the drawing filed by the petitioner along with the writ petition.
4. The respondents No.2 to 4 i.e. the Nazool Officer, Collector and the State have also filed their replies and taken the stand that the slab has been constructed without any authority of law and it is an encroachment. The nala is a nazool property and no construction on it can be done without permission of the competent authority. The construction of retention wall and slab has resulted into obstruction in the natural flow of nala and accumulation of rainy water into adjoining area. They further took the stand that on the basis of the report of Revenue Inspector, proceedings under section 248 of the MPLR Code were initiated against respondent No.5 and the order has been passed against him.
5. Respondent No.5 has filed the reply, supporting the case of the petitioner and taking the stand that IDA had proposed to cover all the nalas in Indore to improve the environment. The further stand of the respondent No.5 is that he had approached the Collector vide letter dated 17.4.1997 and to the Municipal Corporation vide letter dated 3.5.1999 placing the difficulty faced on account of the open nala. The representation was also made by the Shreenagar Extention Residents Association to the IDA. The respondent No.5 had received the letter dated 13.12.1999 from Municipal Corporation granting 'No Objection' from Municipal Corporation for the proposed construction. Thereafter the technical data was submitted by respondent No.5 for approval to the Municipal Corporation. His further stand is that by virtue of section 81 A of the Municipal Corporation Act, the land in question is managed by Municipal Corporation and that the
