The necessity of obtaining permission for construction within the limits of Municipal Corporation and the validity of lease agreements for land within protected monument areas.

S.K. Gangele, J.

The petitioners have filed this petition against the notice dt.5.1.2009 (Annexure P/1) issued by the Building Officer of the Municipal Corporation, Gwalior. The Officer directed the petitioner to remove illegal construction within a period of seven days, failing which appropriate action shall be taken for removal of the construction.

2. The petitioner No.1 is a Society registered under the Society Registration Act, 1950. A new Act was introduced in the year 1973 subsequently. The petitioner No.1 society has been running a school, which is 100 years old. On 30.10.1956, the State of Madhya Bharat, by way of Memorandum of Understanding granted perpetual lease of area on which the petitioner No.2 had possession on a rent of Rs.100/- per year. The school of the petitioner society is at Gwalior Fort and it is a boarding school for boys.

3. The School proposed for construction of a hostel building at Gwalior Fort within the location. It submitted an application to the Archaeological Survey of India (ASI). It was mentioned in the application that the proposed construction of Hostel Building shall be located within 200 to 300 mtr. from the protected monument Ek Patthar Ki Baori, Gwalior, hence, sanction be granted. Superintending Archaeologist, Archaeological Survey of India, Bhopal granted permission for construction of Double Storied hostel building at a distance of 243 meters from the protected area of monument on the following conditions :

a. The licence is not transferable.

b. It shall be valid for one year only commencing from the date of issue of this licence.

c. No building of historical importance which has been in existence for more than 75 years will be demolished.

d. If any fragment (s)/sculpture (s)/structure (s) found during excavation, the licence holder should be bound to inform the Archaeological Survey of India.

e. Total area of proposed construction should not exceed 33,522 Sq.ft. (16,761 Sq.ft. x 2) as per the approved attached plan.

f. The facade design of the proposed construction, section and elevation (attached herewith) should not be changed in any manner.

g. The total height of the proposed Hostel building is restricted upto 09.50 meters.

h. The conical and slopy roofs indicated in the plan looks incongruous with the existing heritage structures and hence it should be flat terraces so that it merges with the surrounding area.

i. the document submitted by the school authority regarding the ownership/lease right is not clear. Hence, the required permission should be taken from the relevant department after proving the ownership/lease right of the land.

j. This licence is valid subjected to approval/ NOC for construction from other concerned local authorities/department.

k. If any of the above-mentioned conditions is violated the licence will be treated as cancelled.

4. The petitioner did not obtain any permission from the Municipal Corporation, Gwalior and constructed the building. The petitioner in the petition pleaded that it had submitted an application to the Municipal Corporation for grant of sanction. A copy of the letter dt.12.1.2009 has been filed as Annexure P/6 along with the petition. On 24.1.2007 the Principal of the School wrote a letter to the Municipal Corporation Gwalior, M.P. It is mentioned in the letter that the institution obtained NOC from ASI and it had no knowledge that permission is necessary from Municipal Corporation. Thereafter, a notice was issued by the Commissioner to the Principal of the School to remove the construction.

5. The Municipal Corporation in its return pleaded that the petitioner informed the Municipal Corporation that the petitioner was ready to pay fees as per the requirement of reply dt.24.1.2007. Thereafter, the petitioners had given an undertaking in regard to construction and mentioned the fact that they had stopped the construction after receiving the notice, however, the structures were erected subsequently. It is further pleaded that the petitioner h