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IN THE HIGH COURT OF MADHYA PRADESH
K.K. TRIVEDI, J.
Ashish Kumar - Appellant
Versus
State of Madhya Pradesh - Respondent
Writ Petition No. 2281 of 2013
Decided On : 31-10-2014
BUILDING SANCTION - DEVELOPMENT RULES, 1984 - DEVELOPMENT RULES, 2012 - REPEAL - SAVING CLAUSE - VESTED RIGHT - FAR - MUNICIPAL CORPORATION - AUTHORITY - JURISDICTION - BUILDING PLAN - APPROVAL - SANCTION - DISTINCTION - DEVELOPMENT AUTHORITY - RECOMMENDATION - ABSOLUTE RIGHT - BUILDING CONTROL - PERMISSION - CONDITIONS - APPLICATION - PENDING - CONSIDERATION - RELEVANT RULES - CHANGE IN FAR - OBJECT - ENVIRONMENTAL CONDITIONS - WRIT PETITION - DISMISSAL.
Fact of the Case:
The petitioners, developers and builders, obtained land at Gorakhpur, Jabalpur, and made a development plan. They applied for permission to construct a multi-storied building under the Development Rules, 1984, which was granted by the Joint Director Town and Country Planning, Jabalpur. The petitioners also obtained a sanction under the M.P. Nagar Palika (Registration of Colonizer, Terms and Conditions) Rules, 1988, and submitted an application for grant of sanction to construct the building to the Municipal Corporation, Jabalpur. However, after the Development Rules, 2012 came into force, the Municipal Corporation issued an order reducing the FAR and changing the complete plan of construction. The petitioners challenged this order and the appellate authority's decision upholding it by filing a writ petition.
Finding of the Court:
1. The Development Rules, 1984 and 2012 are special Acts for planning and development in notified planning areas. 2. The definition of 'Authority having jurisdiction' in the Development Rules, 1984 and 2012 is the same and refers to different authorities for different purposes. 3. The Development Authority is responsible for granting permission for development of land and approval of building plans, while the Municipal Corporation is responsible for granting building permission. 4. The permission granted by the Development Authority for development of land is not an absolute right to obtain building sanction. 5. The building control is in the hands of the Municipal Corporation, which has the power to grant or refuse permission for erection or re-erection of buildings. 6. The repeal of the Development Rules, 1984 does not affect the validity of permissions granted under those Rules, but pending applications are to be considered under the Development Rules, 2012. 7. The petitioners did not have a vested right to claim grant of building sanction under the Development Rules, 1984, as the permission granted by the Development Authority was not absolute. 8. The Municipal Corporation rightly considered the petitioners' application for building sanction under the Development Rules, 2012, as it was pending when the new Rules came into force. 9. The change in FAR in the Development Rules, 2012 was made to address environmental concerns and rapid growth of buildings.
Issues: 1. Whether the petitioners had a vested right to claim grant of building sanction under the Development Rules, 1984, despite the repeal of those Rules and the coming into force of the Development Rules, 2012. 2. Whether the Municipal Corporation was correct in considering the petitioners' application for building sanction under the Development Rules, 2012, instead of the Development Rules, 1984. 3. Whether the change in FAR in the Development Rules, 2012 was justified.
Ratio Decidendi: 1. The repeal of a statute does not affect rights accrued or obligations incurred under the repealed statute, unless a different intention appears. However, a mere hope or expectation of acquiring a right is not a vested right. 2. An application for building sanction made under the Development Rules, 1984, but pending when the Development Rules, 2012 came into force, is to be considered under the Development Rules, 2012, as per the saving clause in Rule 105(1)(b) of the Development Rules, 2012. 3. The change in FAR in the Development Rules, 2012 was made to address environmental concerns and rapid growth of buildings, and was therefore justified.
Final Decision: The writ petition was dismissed.
K.K. TRIVEDI, J.
1. This writ petition under Article 226 of the Constitution of India, invites challenge to the order dated 12.12.2012, said to be passed by the Building Officer of Municipal Corporation, Jabalpur, whereby the permission is granted to the petitioners to construct a multi storied building in terms of the proposal of construction made, keeping the maximum height at 18 meters and making construction on 30% of the open land maintaining 1.5 Floor Area Ratio (hereinafter referred to as FAR for brevity), as also the order dated 20.1.2013, passed by the Commissioner of Municipal Corporation, communicating a decision on the appeal fled by the petitioners intimating that in terms of the provisions of M.P. Bhumi Vikas Niyam, 2012 (hereinafter referred to as the Development Rules, 2012 for short), the permission has rightly been granted by the competent Authority keeping in view the specific provisions of Rule 105(b) of the aforesaid Development Rules, 2012, hence the appeal of petitioners is rejected.
2. The brief facts giving rise to this writ petition are, that the petitioners are the developers, colonizers and builders, and have constituted a firm for the said purposes in the name and style of Surendra Dixit & Nitin Dhimole Associates. A land was obtained by the petitioners, at Gorakhpur, Banarsidas Bhanot Ward, Jabalpur, and an agreement was executed on 23.7.2011. For the land admeasuring 0.439 hectares a development plan was made. At the relevant time, the M.P. Bhumi Vikas Niyam, 1984 (hereinafter referred to as the Development Rules, 1984 for short) were in vogue and the requisite application was required to be made before the Joint Director Town and Country Planning, Jabalpur. Such an application was made, which was considered by the High Rise Committee in its meeting dated 3.1.2011. Certain terms and conditions were laid down and the said permission was granted to the petitioners on 18.3.2011. In terms of the Development Rules, 1984, the FAR was granted at 2.5 as per plan to construct a building containing 42 fats in Block-A and 72 fats in Block-B. The petitioners were called upon to deposit the requisite amount, which was deposited on 16.5.2012.
3. The petitioners were required to obtain a building permission from the Municipal Corporation, Jabalpur. A sanction was also required under the M.P. Nagar Palika (Registration of Colonizer, Terms and Conditions) Rules, 1988 (hereinafter referred to as the Rules of 1988 for short). Since the application was made, in terms of the provisions of the Rules of 1988, an agreement to mortgage the property in question was executed by the petitioners with the Commissioner Municipal Corporation, Jabalpur, on 31.5.2012. The object of the agreement was to secure payment of the development charges in terms of the Rules of 1988 and for that purpose 27 fats, shown in the plan were said to be mortgaged with the Municipal Corporation. Before the execution of the agreement, the petitioners were called upon to deposit certain amount in the Municipal Corporation which amount according to the petitioners was deposited. The petitioners thereafter submitted the application for grant of sanction to construct the building on 23.5.2012. It will not be out of place to mention here that after making of the application for grant of sanction to construct the building, a permission was issued to the petitioners by the Municipal Corporation on 6.6.2012 under the provisions of Rules of 1988. In terms of this sanction, the petitioners were required to complete the development work on the site within a period of three years from the date of issue. It is also to be noted that the petitioners were asked to make appropriate application for grant of sanction to construct the building in terms of the provisions of Madhya Pradesh Municipal Corporation Act, 1956 (hereinafter referred to as the Act of 1956 for short) and in terms of the Development Rules of 1984.
4. When the application of the petitioners was
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