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2018 Supreme(MP) 292
IN THE HIGH COURT OF MADHYA PRADESH
Hemant Gupta, C.J. and Vijay Kumar Shukla, J.
Satish Nayak v. State of M.P. and others
Writ Petition No. 12830 of 2011 (PIL) (Jabalpur);
Decided On 7.3.2018.
Rajendra Tiwari with N.K. Tiwari as Amicus Curiae; P.K. Saxena for petitioner; Samdarshi Tiwari, Additional Advocate General with Amit Seth Government. Advocate for respondents/State; Sanjay K. Agrawal for respondent No. 3;
Monoj Sharma and Piyush Tiwari for respondent No. 4;
Anshuman Singh for respondent No. 5.
Headnote: ¼1½ uxj rFkk xzke fuos'k vf/kfu;e] 1973 ¼e-ç-½ & /kkjk 24 & e-iz- Hkwfe fodkl fu;e] 1984 & Hkksiky fodkl ;kstuk 2005] 1973 ds vf/kfu;e dh /kkjk 24 ds v/khu izdkf'kr & D;k mlh 1973 ds vf/kfu;e ds v/khu izdkf'kr 1984 ds fu;eksa ij vfHkHkkoh gksxh & fodkl ;kstuk rFkk 1984 ds fu;e lg&vfLrRo esa gSa & nksuksa dk vuqikyu djuk gksrk gSA ¼iSjk 21
¼2½ Hkwfe fodkl fu;e] 1984 ¼e-ç-½ & fu- 2¼44½] 54] 55] 57¼?k½ rFkk 81] ifjf'k"B B & [kaM B¼1½ rFkk ¼2½ & okf.kfT;d iz{ks= dk fuekZ.k & lM+d ds nwj 4-5 ehVj xkM+h [kM+h djus dk LFkku rFkk 4-5 ehVj [kqyk LFkku NksM+uk & ls vfHkizsr & nksuksa i`Fkd gSa & lM+d ls nwj xkM+h [kM+s djus ds LFkku dks [kqys LFkku dh vis{kk dh rqf"V fd;k tkuk ugha ekuk tk ldrk tSlk fd fu;e 57 ds v/khu micaf/kr gSA ¼iSjk 22 ls 26
¼3½ Hkwfe fodkl fu;e] 1984 ¼e-ç-½ & /kkjk 57¼?k½ rFkk 81] ifjf'k"V B & [kaM B (i) rFkk (ii) & dh vis{kk & okf.kfT;d iz{ks= dk fuekZ.k & ok;q lapkj ,oa izdk'k dk izca/k fd;k tkuk pkfg, & ,sls [kqys LFkku dk Hkkx & 4-5 ehVj xkM+h [kM+h djus ds LFkku rFkk Hkou ds pkjksa vksj 3-6 ehVj Lora= j[kuk gksrh gSA¼iSjk 22 ls 26
¼4½ uxjikfyd fuxe vf/kfu;e] 1956 ¼e-ç-½ & /kkjk 308&d & mica/k ds v/khu vijk/k & 'keuh; ughaA ¼iSjk 28
¼5½ uxjikfyd fuxe vf/kfu;e] 1956 ¼e-ç-½ & /kkjk 308&d & 5027-15 oxZ ehVj vf/kd {ks= ij fuekZ.k fd;k x;k & ,slk vf/kd fuekZ.k dkuwuh fu;eksa ds vfrØe.k esa gS & ;|fi vijk/k 'keuh; ugha gS & fdarq Hkou fxjk nsuk yksd fgr esa ugha gks ldrk & fxjkus ds ctk, & 'keuh; Qhl dh jde ds nks xquk #- 7]50]00]000@& vf/kjksfirA ¼2017½1 ,l lh lh 667 fufnZ"VA ¼iSjk 28 ,oa 29
(1) Nagar Tatha Gram Nivesh Adhiniyam, 1973 (M.P.) -- S. 24 -- M.P. Bhumi Vikas Rules, 1984 -- Bhopal Development Plan, 2005, published under section 24 of Act of 1973 -- whether override the Rules of 1984 published under same 1973 Act -- Development Plan and Rules of 1984 co-exist -- both have to be complied with. [Para 21
(2) Bhumi Vikas Rules, 1984 (M.P.) -- Rr. 2(44), 54, 55, 57(d) and 81, Appendix L-cls. L(i) and (ii) -- construction of commercial complex -- leaving 4.5 Meter as off-street parking and 4.5 Meter as open space --means of -- both are distinct -- off-street parking cannot be treated to satisfy requirement of open space as provided under rule. 57. [Paras 22 to 26
(3) Bhumi Vikas Rules, 1984 (M.P.) -- Rr. 57(d) and 81, Appendix L-cls. L(i) and (ii) -- requirement of -- construction of commercial complex -- ventilation and lighting should be provided - part of such open space -- 4.5 Meter for parking and 3.6 Meter around the building is to be kept free. [Paras 22 to 26
(4) Municipal Corporation Act, 1956 (M.P.) -- S. 308-A -- offence under -- not compoundable. [Para 28
(5) Municipal Corporation Act, 1956 (M.P.) -- S. 308-A -- construction made on excess area of 5027.15 Square Meter -- such excess construction is in violation of statutory rules -- though offence is not compoundable -- but demolition of building may not be in public interest -- in lieu of demolition -- twice amount of compounding fee Rs. 7,50,00,000/- imposed. (2017)1 SCC 667 referred to. [Paras 28 & 29
Gupta, C.J.--1. The present petition, filed in public interest, levels allegations of illegalities and negligence of the respondents No. 3 and 4 in respect of construction of Mansarovar Complex at Maharana Pratap Nagar, Bhopal leading to traffic chaos in the area.
2. It is alleged that building has been raised over the land of M.P. State Road Transport Corporation but without proper building plan nor adequate area for parking has been provided, therefore, road is being used for parking purposes. It is also pointed out that the Government constituted a committee of three members which has given a report that the Municipal Corporation has not followed the Rules at the time of sanction of the map but still no action has been taken. The report dated 29th September, 2010 has been attached with the writ petition.
3. On behalf of the Municipal Corporation, in a report filed on 5th March, 2014 (I.A. No. 2841/2014), it has been stated to the following effect :
“2. This Hon'ble Court vide order dated 7.1.2014 was pleased to issue directions to the Municipal Corporation to submit compliance report highlighting the steps taken by the Corporation in resolving the issues, hence the instance report is being filed.
3. The answering respondent respectfully submits that, paid parking facility has been set up at Zone No. 10, Ward No. 44 near Mansarowar Complex, M.P. Nagar, Bhopal. The land available for paid parking near Mansarowar Complex is admeasuring about 800 sq. mt, which would be evident from memo dated 17.2.2014 issued by Zonal Officer, Zone No. 10, Municipal Corporation, Bhopal. Copy of memo date 17.2.2014 is annexed herewith as ANNEXURE-IA/1.
4. It is further submitted that the vehicle which are being parked on the main road near Mansarowar Complex (including BRTC Corridor Road) are not being allowed to be parked as on date, since the answering respondents has declared the said particular area as 'No Parking Zone'. Thus, paid parking service has been established at the land adjacent to Mansarowar Complex, Bhopal. Thus, as on date adequate parking space is available near Mansarowar Complex, Bhopal.”
4. In another affidavit filed on 28th March, 2016 (I.A. No. 4206/2016), the Corporation-Respondent No. 3 has stated to the following effect :
“5. In reply to the letter date 2.5.2015, the department vide letter date 13.7.2015 clarify the position regarding violation of not providing off street parking and area of marginal open space in short MOS is being used as off street parking. A copy of letter date 13.7.2015 is annexed herewith as ANNEXURE-IA/2.
6. As soon as the answering respondent received the letter date 13.7.2015 it immediately sent a proposal to the State Government for cancellation of the building permission date 29.5.2002 on the basis of which the Mansarowar Complex was constructed because as per provision of section 299-A of the M.P. Municipal Corporation Act 1956 only State Government has power to cancel or revise permission for construction of a building. A copy of proposal date 16.7.2015 is annexed herewith as ANNEXURE-IA/3. It is submitted that the proposal is still pending with State authorities. It would thus be seen that the answering respondent has taken all measures promptly and the matter is pending with the state authorities whenever the State Government will take its decision the answering respondent will comply the same.”
5. The State Government filed its response on 19th December, 2016 (I.A. No. 16780/2016) along with an order dated 24th September, 2016 passed by the State Government whereby the proposal of the Municipal Corporation, Bhopal to cancel the building permission granted to the respondent No. 4 was rejected and that the Municipal Corporation was directed to proceed against the respondent No. 4 in terms of the provisions of the Municipal Corporation Act, 1956 (hereinafter referred to
