HIGH COURT OF MADHYA PRADESH
A.K. Shrivastava, J.
Prakash Chandra Agarwal and another v. State of M.P. and others
Writ Petition No.2388 of 2001 (Jabalpur); Decided on 1.8.2013.
Held : The basic document which is the foundation stone of this case is the notice dated 11.8.2000 issued by respondent No.4-City Engineer, Municipal Corporation, Jabalpur on its face value according to me is quite vague for the simple reason that how and in what manner the alleged construction which was raised by the first petitioner was illegal, has not at all been mentioned in the notice. Further it has also not been mentioned whether the petitioners have raised any floor in contravention to the sanctioned map; or no open space has been left in accordance to the yardstick given in the sanctioned map; whether the construction was illegal on account of constructing some projection etc., all these essential facts are totally lacking in the said notice.
The modus operandi which was applied by the Corporation and its functionaries was in total derogation of the law. Hence, to me, since the notice under section 307(2) of the Act of 1956 was vague and the entire proceedings were taken on the basis of vague notice resulting into dismantling of construction was totally violative to the law. Hence, the impugned notice dated 11.8.2000 (Annexure P-4) stands quashed.
(2) Constitution of India -- Arts.300A, 21 and 19(1)(g) -- M.P. Municipal Corporation Act, 1956 -- S.307(2) -- Municipal Corporation dismantled the construction illegally -- no material on record to show its entire cost -- High Court not competent to decide this highly disputed question of fact while exercising writ jurisdiction -- however, petitioners free to file a civil suit for damages. [Para 11
¼1½ Hkkjr dk lafo/kku & vuqPNsn 300d] 21 rFkk 19¼1½¼N½ & e-iz- uxjikfyd fuxe vf/kfu;e] 1956 & /kkjk 307¼2½ & uxjikfyd fuxe )kjk vLi”V lwpuk ds vk/kkj ij lfUuekZ.k dk fxjk;k tkuk fof/k ds vuqlkj iw.kZr% vfrdze.kdkjh & iwoksZDr lwpuk vfHk[kafMrA
vfHkfu/kkZfjr % ewy nLrkost] tks bl ekeys dh vk/kkjf’kyk gS] izR;FkhZ dz-4 uxj bathfu;j] uxj fuxe] tcyiqj )kjk tkjh lwpuk fnukad 11-8-2000 gS] bls ns[kus ij] esjs vuqlkj] ;g ek= bl dkj.k ls iw.kZr% vLi”V gS fd vfHkdfFkr lfUuekZ.k] ftls izFke ;kph )kjk djk;k x;k Fkk] dSls rFkk fdl jhfr ls voS/k Fkk] bldk lwpuk esa fcYdqy Hkh mYys[k ugha fd;k x;kA blds vfrfjDr bldk mYys[k ugha fd;k x;k fd D;k ;kphx.k us eatwj uD’ks ds mYya?ku esa dksbZ eafty dk fuekZ.k fd;k gS ;k eatwj uD’ks esa fn, x, ekinaM ds vuqlkj dksbZ [kqyk LFkku ugha NksM+k gS] D;k lfUuekZ.k dqN ckgj fudkys x, bR;kfn dk fuekZ.k djus ds dkj.k voS/k Fkk] lwpuk esa bu lHkh vko’;d rF;ksa dk iw.kZr% vHkko gSA fuxe rFkk blds d`R;dkfj;ksa )kjk ykxw dh xbZ dk;Ziz.kkyh iw.kZr% fof/k ds vYihdj.k esa FkhA blfy,] esjs vuqlkj] D;ksafd 1956 ds vf/kfu;e dh /kkjk 307¼2½ ds v/khu lwpuk vLi”V Fkh rFkk laiw.kZ dk;Zokfg;k¡ vLi”V lwpuk ds vk/kkj ij dh xbZ Fkh ftldk ifj.kke lfUuekZ.k dk fxjk;k tkuk FkkA fof/k ds iw.kZr% vfrdze.k esa FkhA blfy,] vkf{kIr lwpuk fnukad 11-8-2000 ¼mikca/k ih&4½ vfHk[kafMr gksrh gSA
¼2½ Hkkjr dk lafo/kku & vuqPNsn 300d] 21 rFkk 19¼1½¼N½ & e-iz- uxjikfyd fuxe vf/kfu;e] 1956 & /kkjk 307¼2½ & uxjikfyd fuxe us lfUuekZ.k dks voS/k :i fxjk;k & bldh iwjh ykxr nf’kZr djus ds fy, vfHkys[k ij dksbZ lkexzh ugha & mPp U;k;ky; fjV vf/kdkfjrk dk iz;ksx djrs le; bl vR;ar fookfnr rF; ds iz’u dk fofuf’p; djus ds fy, l{ke ugha & rFkkfi] ;kphx.k uqDlkuh gsrq flfoy okn izLrqr djus ds fy, Lora=A
¼iSjk 11½
1. By this petition under Article 226/227 of the Constitution of India, the petitioners have sought the following reliefs :
(a) the respondents Municipal Corporation, Jabalpur be directed to certify to this Hon’ble Court the entire record leading to issuance of notices Annexure P-4 and P-5 upto the demolition of the building;
(b) a writ of certiorari be kindly issued quashing the notices Annexure P-4 dated 11.8.2000 and Annexure P-6 dated 16.8.2000;
(c) a direction be issued to the respondents No.1 to 5 and 7 and 8 not to proceed to further demolish the building H.No.177 Sarafa Ward, Jabalpur. They be also directed not to obstruct further construction as per the plan sanctioned vide order dated 8.5.2000 Annexure P-2;
(d) a direction be further issued to the Municipal Corporation/Commissioner, Municipal Corporation, Jabalpur to consider the petitioners’ offer to compound in terms of section 308A of the M.P. Municipal Corporation Act, 1956, if any construction is found not in accordance with the permission granted;
(e) a direction be issued against the respondents 7 and 8 to compensate the petitioners for damage to the building (the petitioners’ estimate of damage being Rs.10,00,000/- Rs. Ten lacs (sic) and to reimburse the Municipal Corporation for the amount paid by it to the injured as compensation for the injuries sustained;
(f) a direction be issued to be competent disciplinary authorities of the State/Municipal Corporation to proceed to take disciplinary action against respondents 7 and 8 and to punish them according to law, if found guilty;
(g) any other relief and costs of this petition be awarded to the petitioners.
2. As per the case of the petitioners, after obtaining requisite permission from the Municipal Corporation, Jabalpur and its functionaries they raised necessary construction. However, a notice under section 307(2) of the M.P. Municipal Corporation Act, 1956 (in short “Act of 1956”) dated 11.8.2000 (Annexure P-4) was issued by respondent No.4 City Engineer, Municipal Corporation, Jabalpur to the first petitioner Prakash Chand Agarwal that he has raised construction contrary to the approved plan and directed to submit reply as to why illegal construction may not be dismantled. In pursuance to the aforesaid notice which was received by first petitioner on 11.8.2000 (Annexure P-4), a written reply was submitted by him on 14.8.2000 i.e. within three days and same was also received on the same day by the office of respondent No.4. Despite the reply of show cause notice was given by the first petitioner, another notice was issued to him by the respondent No.4-City Engineer, Municipal Corporation, Jabalpur on 16.8.2000 (Annexure P-6) stating therein that despite notice under section 307(2) of the Act of 1956 was served upon him he did not file any reply and therefore he was directed to submit the relevant document within 24 hours failing which it was stipulated in the said notice that at any moment, the Dafai Squad of Municipal Corporation, Jabalpur would come and dismantle the illegal construction. Against first petitioner submitted his reply (Annexure P-7) and submitted that earlier on 14.8.2000 the reply was submitted and it is incorrect to say that no reply was submitted by him. The copy of earlier reply dated 14.8.2000 along with copy of sanctioned map was also submitted with the reply (Annexure P-7). Thereafter it appears that on 17.8.2000 (wrongly typed 17.2.2000) an application (Annexure P-8) was submitted by the petitioner to the Mayor stating therein that despite he submitted reply without hearing him, the Municipal Corporation, Jabalpur is dismantling the structure and construction raised by the first petitioner which he constructed according to sanctioned map. Vide Annexure P-9 on 19.8.2000 a report was also submitted to the Station House Officer, Police Station Kotwali, Jabalpur praying to take appropriate action. Thereafter a portion of building of petitioners was pulled down and dismantled. Hence, this p
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