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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
VIJAY KUMAR SHUKLA, J.
Smt. Ritika Hasanandani, W/o. Mahesh Hasanandani and Anr. - Petitioners
Versus
Commissioner, Indore Municipal Corporation, Dist. Indore (Madhya Pradesh) and Anr. – Respondents
Writ Petition No. 12889 of 2023
Decided On : 11-12-2023
Article 226 - Direction to Acknowledge Deemed Permission - M.P. Bhumi Vikas Niyam, 2012 - Rule 31(h)
Fact of the Case:
The petitioners seek direction to acknowledge deemed permission for change of occupancy in their premises for commencing a cafeteria business. The respondents had issued notices and rejected the petitioners' contentions, stating that the building was earmarked for residential use and any change of use required permission from the Director, Town and Country Planning.
Finding of the Court:
The court found that the respondent No.2 was not the competent authority to consider the application for change of occupancy or building use. The petitioners' application for permission was not maintainable before the respondent No.2, and there could be no deemed permission on the said application. The petition was dismissed, granting liberty to the respondent No.2 to proceed in accordance with the law for the violation of building permission under the Rules.
Issues: The main issue was whether the respondent No.2 was the competent authority to consider the application for change of occupancy in the premises for commencing a cafeteria business.
Ratio Decidendi: The court held that the respondent No.2 was not the competent authority for change of occupancy, and the petitioners' application for permission was not maintainable before the respondent No.2. The application for change of use of building or occupancy should have been made before the Director, Town and Country Planning.
Final Decision: The petition was dismissed, and the respondent No.2 was granted liberty to proceed in accordance with the law for the violation of building permission under the Rules.
ORDER :
The present petition is filed under Article 226 of the Constitution of India seeking a direction to the respondents to acknowledge deemed permission regarding application dated 29/12/2022, 7/2/2023 and 24/2/2023 for obtaining permission for change of the occupancy in the premises of petitioners(G-1, Shubh Apartment, 20 Saket Nagar, Indore M.P.)
2. The facts of the case are that the house No. 20, Saket Nagar is G-4 building and width of road is 12 meters. The petitioners purchased flat no. G-1 (ground floor) in the said building from the owner thereof on 7/2/2013. From the said date the petitioners are using the above premises along with MOS area, temporarily covered by shed) without any interruption of other flat owners of the above building because there is separate entrance for other flat owners. The petitioners are using the above premises for commercial purpose without any interruption of other flat owners and respondents. The petitioners are paying property tax at commercial rates and also continuously paying electricity bills for commercial use. The petitioner No.1 being the co-owner of the above premises has constituted a partnership firm 'Hasanandani Foods' with the consent of other co owner i.e. Petitioner No. 2 who is the husband of the Petitioner No. 1. In the said partnership firm, the other partners are her son and daughter. Now the said partnership firm wants to carry cafeteria shop for which the relevant permission has also been taken from the other Govt. department and a business license has also been obtained from the Respondent No. 2.
3. Some flat owners of the above building have taken objection before the Respondents against commencing cafeteria by the Petitioners. The Respondent No. 2 issued notice to the Petitioners on 27/09/22 for raising construction without any permission. On the very same day the Petitioners submitted application to Respondents for giving information regarding license to start cafeteria at their premises and on 04/10/2022 also given reply to notice dated 27/09/2022. Some flat owners of the above building have also filed one writ petition being W.P. No. 21720/2022 before this Court praying therein to restrain alleged illegal construction in the above building and not to change the occupancy of the subject building and also not start any commercial activity in the said building. The said writ petition came up for hearing on 12/10/2022 and this Court passed the following order :-
4. After disposal of the said petition, on 22/11/2022 the Respondent No.2 issued notice to the Petitioners. On 24/11/2022 the petitioners filed the reply of above notice. It is submitted that for commencing the business of cafeteria the present petitioners have commenced some partition, fall ceilings, re-flooring and temporary sun shades for which as per the Rule 12 Bhumi Vikas Niayam, no prior permission is required. Since the Respondents No.2 issued notice dated 22/11/2022 therefore, the Petitioners acting bonafide stopped further interior work. On 29.12.2022 the petitioners submitted application with a copy of relevant excerpt of Master Plan to the Respondent No. 2 for granting permission to commence the cafeteria.
5. Despite receipt of the said application the respondents have not given any permission to the present petitioners for commencing cafeteria in above premises. Since there was no refusal or grant issued by respondents regarding the cafeteria, therefore, on 7/2/2023 the present petitioners submitted reminder for issuing permission to the pres
Prior development permissions granted under repealed rules remain valid despite subsequent regulatory changes, and cannot be revoked retroactively by new laws.
Illegal construction – Demolition of - Executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies o....
Accrued rights from previous land use approvals must be respected despite new regulations; Town Planner's jurisdiction to deny building plan approval was not established.
The construction of a permanent building on land reserved as open space without seeking prior permission from the competent authority is illegal.
Point of law: Rule which has to be applied is the one which is in force at the time of issuance of the permit and not the rule that was in force at the time of submission of the application.
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