Deliberate unauthorized construction and commercial use of premises are not eligible for compounding and may warrant stern action as a deterrent for future violations.

P.K. Jaiswal, J.

1. This intra court appeal has been filed by the appellants against the order dated 2.8.2016 passed in W.P. No. 593/2015 whereby, the learned writ court upheld the directions contained in the notice dated 21.1.2015 for stopping the unauthorized user of the terrace and disposed of the writ petition by granting liberty to file reply to the show cause notice for removal of unauthorized construction, if not already filed and directed the Municipal Corporation to take decision in accordance with law.

2. Facts of the case are that multiplex building has been constructed by the appellants after obtaining necessary permission on 15.11.2016 over an area of 23648.16 Sq. Mtrs. area with 18 Mtrs. high building with the conditions :-

vkids }kjk izLrqr ekufp= esa ry?kj o ry?kj&2 esa lEiw.kZ ikfdZax] ry?kj&1 esa LVksj] Hkwry] izFkery] f}rh;ry] r`rh; ry] eYVhQ~ysDl 'kkWfiax dkEiysDl mi;ksx gsrq rFkk VsjslQ~yksj dk mi;ksxA

fu;e 63 vuqlkj dsoy lfoZlsl gsrq jgsxkA 1 Hkou dh dqy mapkbZ 18-0 j[kuh gksxhA 2- fcYMj yk;lsal Øa0 254 fnukad 30-08-2006 esa of.kZr 'krksZa dk ikyu vfuok;Z gksxkA 3- LVky ij fuekZ.k Hkwdai jks/kh rduhd ls ,DlikVZ LV~Dpjy fMtkbZuj dh ns[k&js[k esa djuk gksxkA

3. On 30.3.2007, high rise committee passed an order thereby granting permission for construction of 30 meters high-rise multiplex building under the provisions of M.P. Bhumi Vikas Niyam, 1984. On 3.4.2007 vide Annexure P/7, Municipal Corporation granted permission for construction of multiplex commercial building with the height of 24 meters and construction of 41701.08 Sq. Mtrs by imposing certain conditions. Relevant conditions reads as under :-

vkids }kjk izLrqe ekufp= iwoZ nk0 dz0 13800 fnukad 15-11-2006 ds vuqlj.k esa ry?kj&3 ,oa ry?kj&2] esa lEiw.kZ ikfdZax] ry?kj&1 O;kolkf;d] Hkwry] izFkery] f}rh;ry] r`rh;ry ,oa prqFkZry fjokbZTM eYVhQ~ysDl 'kkWfiax dkEiysDl def'kZ;y mi;ksx gsrq rFkk VsjslQ~yksj dk mi;ksx fu;e 63 vuqlkj dsoy lfoZlsl gsrq jgsxkA 1- Hkou dh vf/kdre mapkbZ 24 eh0 j[krs gq, eYVhQ~ysDl iw.kZr% okrkuqdwfyr j[kuk gksxkA

4. On 19.6.2008 a revised building permission was issued thereby permitting construction of 5 multiplex in place of 4 multiplex, but reducing the height from 24 Mtrs to 23.5 meters and the area of construction was made 41703.45 Sq. Mtrs. On completion of construction of entire multiplex commercial building Municipal Corporation issued completion certificate on 8.8.2008.

5. On 9.12.2011, the State of M.P. conducted an enquiry as regard alleged illegal construction and opined that the matter be compounded. On 12.6.2012, the said application for compounding has been rejected by the respondent No.2 – Building Officer. On application for recalling the order dated 12.6.2012 was passed on 15.6.2012.

6. On 21.1.2015 notice has been issued by the respondent No.2 for stopping use of terrace floor for the purpose of restaurant on the ground that the building permission was granted for using terrace as service area and contrary to the permission, the appellants are using terrace for the purpose of running a restaurant known as "Shisha Lounge".

7. In terms of Section 308-A of the Municipal Corporation Act, 1956, (here-in-after referred as 'the Act of 1956') the unauthorized user of the premises cannot be compounded and directed the appellants to stop using the terrace floor for the purpose of restaurant and remove all the permanent and illegal construction within a period of 3 days else action will be taken by the Municipal Corporation for removal of illegal construction under the provisions of the Act of 1956 and M.P. Bhumi Vikas Rules, 2012 (hereinafter referred as 'the Rules of 2012'). The said action has been challenged by filing writ petition on the ground that the notices have wrongly been issued. It is alleged that the order dated 12.6.2012 has been passed without giving any opportunity of hearing to the appellants and that it has been passed by Zonal Officer whereas, the Commissioner, Municipal Corporation is only competent t