Construction on Margin Of Space (MOS) areas is prohibited under Madhya Pradesh Prakoshtha Swamitva Adhiniyam, 1976, and must be removed to maintain open spaces.

The petitioner has filed the present petition under Article 226 of Constitution of India seeking direction to respondents No.1 to 4 - Madhya Pradesh Housing Board to remove illegal construction raised on Margin Of Space (MOS) area of his house by respondent No.5. 2. Respondent No.5 was given a House No.410, EWS, Stadium Ground, Nanda Nagar, Indore (MP) on lease on 05.07.1996 (Annexure R/1) by respondent No.1. Respondent No.5 sold the said house to Virendra S/o Gulab Rao Dahe vide registered sale-deed Annexure R/2. Thereafter, Virendra S/o Gulab Rao Dahe sold this house and leased land vide registered registered sale- deed dated 13.01.2014 (Annexure R/3) to the petitioner. Thereafter the name of the petitioner was mutated in the record of Madhya Pradesh Housing Board on 10.11.2017 (Annexure R/4). When this house was in possession of Smt. Kokilabai W/o Babulal (respondent No.5), she illegally constructed a shop on front MOS area. The petitioner was given the possession of the house after execution of registered sale-deed on 13.01.2014, but respondent No.5 remained in the possession on the illegal construction on MOS area.

3. The petitioner submitted various representations to respondents No.1 to 4 to remove the alleged illegal construction in front of her house hence approached High Court.

4. Respondents No.1 to 4 - Madhya Pradesh Housing Board filed its reply admitting that no construction is permissible on MOS area and there is an illegal construction by erst while owner Smt. Kokilabai W/o Babulal in MOS area whose husband was an employee of MP Housing Board, but the same could not be removed till date.

5. Later on, Respondent No.5 has been impleaded as co-respondent in this case on 23.08.2023 and notice was issued to her for submitting a reply. Learned counsel appearing for respondent No.5 submits that respondent No.5 has no document in respect of ownership as well as permission to raise construction in MOS area.

6. Admittedly, MOS area is always liable to keep open in which no permission for raising construction can be granted. The purpose of leaving an open land by way of MOS would be frustrated if any construction is raised. As per the provisions of Madhya Pradesh Prakoshtha Swamitva Adhiniyam , 1976, no construction can be raised on MOS area.

7. Even the Apex Court in the matter of Laxmi Chand Jain S/o Mannalal Jain v. Yusuf Ali Agrawala S/o Hussain & others , Petition (s) for Special Leave to Appeal (C) No (s).29717 of 2018 vide order dated 31.01.2020 has held, as under: -

"On 11 December 2019, the following order was passed by this Court, recording the statement of the learned counsel appearing on behalf of the Madhya Pradesh Housing and Infrastructure Board:

“Learned counsel appearing on behalf of the Madhya Pradesh Housing Board states that the action which has been taken against the petitioners is not confined to the petitioners alone and that the Housing Board will take action against any person similarly placed who has occupied area on the ground floor appurtenant to the common areas and amenities of all the residents.

We permit the Housing Board to file an affidavit by 6 January

2020. List the Special Leave Petitions on 13 January 2020.”

In pursuance of the above order, an affidavit has been filed by the Executive Engineer of the Madhya Pradesh Housing and Infrastructure Development Board.

The affidavit contains the following statement:

“I say that the flat allotted to the petitioner, bearing MIG flat no.AE-1 is situated in Khajrani Colony, Pt. Ravishankar Shukl Nagar at Indore, Madhya Pradesh.

4. I say that the lease/sale deed qua the common open area, which was appurtenant to the petitioner’s residential flat, and erroneously allotted to the petitioner, has since been cancelled pursuant to the directions of the District Consumer Redressal Forum, District Bench Indore dated 16th July 2010 bearing Case No.1438/2010 titled Yusuf Ali Agrawala v/s Sh. Praveen Garg, Housing Commissioner, M.P. Housing Board and Ors. I say th