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2016 Supreme(MP) 16
MADHYA PRADESH HIGH COURT
P.K. Jaiswal and Jarat Kumar Jain, JJ.
Motilal Rathore v. State of M.P. and others
Writ Petition No.4014 of 2014 (PIL) (Indore); Decided on 6.1.2016.
Hitesh Sharma for petitioner;
Deepak Rawal, Deputy Advocate General for respondents No.1 and 2;
Anand Agrawal, Government Advocate for respondent No.3;
A.P. Polekar for respondent No.4.
Headnote:(1) Municipalities Act, 1961 (M.P.) -- Ss.109(3) and 209 -- M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 -- S.85 -- M.P. Bhumi Vikaks Rules, 2012 -- R.24(1)(e) -- sewage Nallah -- after NOC from concerned departments -- lease and sanction of construction of shop over such Nallah -- writ petition as PIL against such sanction -- that shop is to be made over running water Nallah which is not only causing free flow of water but is dangerous for public -- Nallah is not used as water body -- but used as sewage of town -- 200 shops already and 35 shops recently constructed over same Nallah -- no objection taken by petitioner about such shops -- thus in granting sanction in favour of respondent No.4 -- provisions of Rules or Acts not violated -- petition is not in public interest -- but it is filed to victimize to respondent No.4 -- no interference called for -- petition dismissed.
Held : In the present case the Nallah is used not in reference of water body but in reference of carrying the sewage of the town. In the present case respondent No.3 has not granted sanction for construction over any Nallah, which is for water body. Thus, we are of the view that in granting sanction respondent No.3 has not violated the provision of rule 24 of M.P. Bhumi Vikas Rules, 2012.
Admittedly, for last many years 200 shops existed over the Nallah and respondent No.3 had recently constructed 35 shops over the Nallah, but, earlier the petitioner has not taken any objection and even after said construction there is no obstruction in the sewage.
[Paras 13 & 14
The petitioner is unable to convince us that respondent No.3 has violated any of the provisions of the "Act" 1961 or M.P. Bhumi Vikas Rules, 2012.
With the aforesaid we are of the view that this petition is not filed for any public interest but filed to victimize respondent No.4, who is a physically challenged person. Thus, we find no merit in the petition and the petition is hereby dismissed. (1996)2 SCC 594 referred to. AIR 2013 SC 1226 and AIR 2010 SC 1937 distinguished.
(2) Constitution of India -- Arts.226 and 227 -- writ petition as PIL -- maintainability of -- no any public interest established -- but petition filed to victimize to respondent No.4 -- no interference called for -- petition dismissed. [Para 17
¼1½ uxjikfydk vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 109¼3½ rFkk 209 && e-iz- uxj rFkk xzke fuos'k vf/kfu;e] 1973 && /kkjk 85 && e-iz- Hkwfe fodkl fu;e] 2012 && fu-24¼1½¼M½ && eyty ukyk && lacaf/kr foHkkxksa ls vukifÙk ds i'pkr~ && ,sls ukyk ij iV~Vk rFkk nqdku fuekZ.k dh eatwjh && ,slh eatwjh ds fo#) yksdfgr eqdnek ds :i esa fjV ;kfpdk && fd nqdku cgrs ikuh ukyk ds Åij cukbZ tkuk gS tks u dsoy ikuh ds fuckZèk cgko dks izHkkfor djsxk cfYd vke turk dks ladViw.kZ gS && ukyk tyk'k; ds :i esa iz;qDr ugha && cfYd uxj ds eyty ds :i esa iz;qDr && mlh ukys ds Åij 200 nqdkusa igys ls gh rFkk 35 nqdkusa gky esa fufeZr && ;kph }kjk ,slh nqdkuksa ds fo"k; esa dksbZ vkifÙk ugha dh xbZ && bl izdkj izR;FkhZ Ø-4 ds i{k esa eatwjh iznku djus esa && fu;eksa ;k vfèkfu;eksa ds mica/kksa dk vfrØe.k ugha && ;kfpdk dksbZ yksdfgr esa ugha && cfYd izR;FkhZ Ø-4 dks mRihfM+r esa djus ds fy, izLrqr dh xbZ gS && gLr{ksi visf{kr ugha && ;kfpdk [kkfjt dh xbZA
vfHkfu/kkZfjr % bl izdj.k esa ukyk tyk'k; ds lanHkZ esa iz;qDr ugha gS cfYd uxj ds eyty ys tkus ds lanHkZ esa iz;qDr gSA bl izdj.k esa izR;FkhZ Ø-3 us fdlh ukyk ds Åij fuekZ.k dh eatwjh ugha nh gS] tks tyk'k; ds fy, gSA bl izdkj] ge bl jk; esa gSa fd izR;FkhZ Ø-3 us eatwjh iznku djus esa e-iz- Hkwfe fodkl fu;e] 2012 ds fu;e 24 ds mica/k dk vfrØe.k ugha fd;k gSA
Lohd`rr%] xr vusd o"kks± ls ukyk ds Åij 200 nqdkusa fo|eku gSa vkSj izR;FkhZ Ø-3 us gky esa ukyk ds Åij 35 nqdkusa fufeZr dh gSa] fdarq] ;kph }kjk iwoZrj dksbZ vkifÙk ugha dh xbZ gS vkSj mi;qZDr fuekZ.k ds i'pkr~ Hkh eyty esa dksbZ ck/kk ugha gSA ¼iSjk 13 ,oa 14
;kph gedks ;g fo'okl djkus esa vleFkZ jgk gS fd izR;FkhZ Ø-3 us 1961 ds vfèkfu;e ;k e-iz- Hkwfe fodkl fu;e] 2012 ds fdlh mica/k dk vfrØe.k fd;k gSA ¼iSjk 15
mi;qZDrkuqlkj ge bl er esa gSa fd ;g ;kfpdk fdlh yksdfgr esa izLrqr ugha dh xbZ gS cfYd izR;FkhZ Ø-4 dks mRihfM+r djus ds fy, izLrqr dh xbZ gS] tks 'kjhj dh n`f"V ls vk{ksfir O;fDr gSA bl izdkj ge ;kfpdk esa dksbZ xq.kkxq.k ugha ikrs gSa ,oa ,rn~}kjk ;kfpdk [kkfjt dh tkrh gSA ¼1996½2 ,l lh lh 594 fufnZ"VA , vkb vkj 2013 ,l lh 1226 rFkk , vkb vkj 2010 ,l lh 1937 izHksfnrA ¼iSjk 17
¼2½ Hkkjr dk lafo/kku && vuq-226 rFkk 227 && yksdfgr eqdnek ds :i esa fjV ;kfpdk && dk pykus ;ksX; gksuk && dksbZ yksdfgr gksuk LFkkfir ugha && cfYd ;kfpdk izR;FkhZ Ø-4 dks mRihfM+r djus ds fy, izLrqr dh xbZ && gLr{ksi visf{kr ugha && ;kfpdk [kkfjt dh xbZA ¼iSjk 17
1. This public interest litigation has been filed for quashing the sanction for construction of shop over Nallah, granted by respondent No.3 in favour of respondent No.4.
2. Brief facts of this petition are that in auction, Nirmala Saraf and respondent No.4 have purchased two adjoining shops situated over the Nallah, from Municipal Council,Barwani. At the request of Nirmala Saraf on 23.10.1999, Municipal Council had granted lease of the land admeasuring 12X13.8 feet behind the purchased shop. Subsequently Nirmala Saraf had given no objection in favour of respondent No.4 for transferring the said land. Then Municipal Council Barwani had granted lease of the said land to respondent No.4. Thereafter, Municipal Council, Barwani vide order dated 22.3.2014, granted the permission (Annexure P-6) to construct a shop on the said land, which is on the Nallah. Petitioner and other residents of the locality were perturbed and they have submitted representations to various authorities that the construction of the shop is to be made over and above a running Nallah and not only causing obstruction in the free flow of the water but is dangerous for the public at large. On 3.5.2014, respondent No.3 has stayed the operation of the impugned order and directed the respondent No.4 to stop the construction of the shop. It is submitted that sanction for construction of shop over Nallah is illegal and without authority of law and in violation of section 209 of the Municipalities Act, 1961 (in brief the “Act” 1961), M.P. Nagar tatha Gram Nivesh Adhiniyam, 1973 and also under clause 3 of sub-rule (1) of rule 24 of the M.P. Bhumi Vikas Rules, 2012. The authorities have failed to appreciate the evidence that no construction be made on Nallah, which is very much in use and is running through the heart of the City and on which the people of Barwani have easementry right. Illegal construction on the said Nallah, materially affects the right of enjoyment of the property by persons residing in the area. Therefore, it is prayed that the building construction permission dated 22.3.2014 is liable to be setaside.
3. Respondents No.1 and 2 have not filed any reply to the petition whereas respondent No.3 in his reply stated that Nirmala Saraf was granted a lease of 12x13.8 feet of the land. Subsequently, lease was transferred to respondent No.4. The sanction of building permission to respondent No.4 has been granted after obtaining no objection from the respective departments. The land in question belongs to the Municipality and has been given to respondent No.4 as the land was laying vacant. Earlier also shops over Nallah were constructed but due to construction of shops, flow of Nallah has not been obstructed. Number of shops had already been existed over the said Nallah for last so many years but there is no accumulation of water either in rainy season or any other season. There is no violation of any of the provisions of M.P. Bhumi Vikas Rules, 2012 and provisions of “Act” 1961. It is denied that the public is facing serious threat or any right of the public has been infringed. The petition is not Probano Publico and is filed only to frustrate the lease granted to respondent No.4, who is a handicapped person. The petition is filed due to personal animosity with the respondent No.4. Therefore, it is prayed that the petition be dismissed.
4. Respondent No.4 in his reply stated that Municipal Council, Barwani has already constructed 200 shops over the said Nallah. Municipal Council has granted the permission for construction of a shop to respondent No.4. Nallah is a small drainage but not a water body. In support filed various documents, photographs and affidavits of the persons of the locality. Municipal Council Barwani has recently constructed about 35 shops over the said Nallah but the petitioner has not challenged these constructions. In case the petitioner has any grievance with the sanction granted to respondent No.4, the petitioner has alternative remedy
