R.V.RAVEENDRAN,AFTAB ALAM - (1.) .
(2.) THE respondents are the owners of property bearing khasra No. 92/2 and 93 of Palasiahana (within the Municipal limits of Indore City) measuring about 0.441 hectares or 3601.4 sq.m. Mohan Lal Khimati and three others, who were originally the owners, made an application for grant of permission for development of the said land by construction of a residential -cum -commercial building, to the Town & Country Planning Department, Indore Division. THE Joint Director, Town and Country Planning, by order dated 7.2.2005, granted permission in regard to the building plan for residential -cum -commercial purposes subject to approval of the said building plans by the Indore Municipal Corporation ('Corporation', for short) subject to the following conditions: - (i) THE land can be used for residential -cum -commercial use, if Municipal Corporation approves the building plans. (ii) THE ground coverage area (covered area) will be 33% of the land area; and the floor area ratio will be 1.5. (iii) THE height of the building will not be more than 12.0 M. (iv) Space for parking should be provided as per the ratio specified in Land Development Rules with reference to the floor area of construction. (v) Open Margin Space should be provided as per development Rules, that is 4.5M on the front (Western) side, 3 M on the east, 6 meters on the north and on the south (Mahatma Gandhi Road). THEreafter, on 21.2.1995 the Municipal Corporation granted permission for commercial use by construction and development of the said land as per the building maps. In pursuance of it, development and construction work was commenced on 30.5.1997. By communication dated 31.5.1997, the Joint Director, Town and Country Planning, amended condition No. (v) of the permission letter dated 7.2.1995 by confirming that the Department had no objection for the construction being made with the front side of the building being on the M.G. Road, (that is southern side), and consequently leave a marginal open space of only 3 M. on the western side. The said communication also mentioned that having regard to Rule 56(6) of Land Development Rules and Table 5 thereunder, for buildings of a height of more than 10 M. (but less than 15 M.), the open space on both sides and at the rear should be 3 M. and therefore, the department had no objection for modifying the approval of the building plan by keeping the margin space on the western side, (that is on the Fiftysix Shops Road) as 3 M. The Municipal Corporation by its letter dated 7.6.1997 granted permission to proceed with the construction work as per Dakhla No. 613 dated 13.5.1997 making it clear that there will be no construction upto a depth of 75 feet from M.G. Road front. When the building construction reached plinth level, a notice dated 10.6.1998 was given by the owners for inspection of building. Accordingly, a joint inspection was conducted by the Joint Director, Town & Country Planning and the Building Officer of the Municipal Corporation on 13.11.1998. Their report in regard to such inspection submitted to the Municipal Corporation and the Director of Town & Country Planning confirmed that there was no objection for the setback area on the western side (on the side of Fiftysix Shops Road) being reduced to 3 M, in accordance with Rule 56(6). The report also recorded that the margin open space (setbacks) were as under: - JUDGEMENT_105_TLPRE0_2010Html1.htm On 5.3.1999, the respondents notified the Municipal Coporation that the structure was completed and requested for a service certificate to enable them to apply for service connections. At that stage, the Building Officer issued a show cause notice dated 13.4.1999 and 24.4.1999 to the respondents alleging the following irregularities/violations in construction: (i) the margin area on the western side (Fiftysix Shops Road) ought to have been 4.5 M. as the front elevation was stated to be towards the side of the said Fiftysix Shops Road. But by suppressing this fact, the respondents had obtained approval for 3 M. setback instead of 4.5 M. setback, from the Town & Country Planning Department, contrary to the provisions of the Madhya Pradesh Bhumi Vikas Rules, 1984 ('Rules' or 'Land Development Rules', for short). (ii) What was sanctioned was a construction area of 4373.39 sq.M., service area of 2998.79 sq.M. and balcony area of 465 sq.M. As the land area was 3601.7 sq.M. out of which 45.72 sq.M. were left for road widening, the respondents were entitled to coverage of 33% of 3555.98 sq.m. which meant that the area that could be constructed in each floor was only 1173.43 sq.m. and for a permissible FAR of 1.5, respondents were entitled to construct in all 5333.97 sq.M. But the total constructed area including service area and covered balcony was 7837.18 sq.m. and thereby the FAR was increased from 1.5 to 2.20 contrary to the rules. The respondents gave detailed replies dated 19.4.1999 and 29.4.1999 denying any irregularity in construction. Between 27.10.1999 and 30.10.1999, the completed structure consisting of the basement, lower ground floor, upper ground floor, first floor and second floor, was inspected by a Joint Inspection Team consisting of four officers of the Municipal Corporation (the City Engineer/Building Officer, Zonal Officer, Sub -Engineer and Architect) and four officers of the Town & Country Planning Department (Joint Director, Assistant Director, Senior and Junior Surveyor -cum -Land Measurers). On such inspection, they recorded the area to be constructed as per the sanctioned plan and the area actually constructed by the respondents. It was found that the actual construction did not exceed the sanctioned area. The particulars recorded in the joint report in that behalf are extracted below: JUDGEMENT_105_TLPRE0_2010Html2.htm
(3.) THE respondent also submitted a complaint dated 4.2.2000 to the State Government stating that the second appellant was biased and even though the construction was in accordance with the sanctioned plan under building permissions, the Building Officer had issued show cause notice dated 13.4.1999 to harass them and cause them loss. Acting on the said complaint, the State Government by communication dated 4.2.2000, suggested to the Municipal Corporation that the issue may be sorted out by posting some other Building Officer. THEreafter, the Building Officer (second appellant) passed an order dated 11.4.2000, directing as follows : (i) THE respondent shall not have shutters of any shops in their building opening on to the Fiftysix Shops Road and the respondents shall construct a wall towards the said Fiftysix Shops Road with only two openings for pedestrians and shall not use their building with any doorways towards the Fiftysix Shops Road. (ii) THE respondent shall demolish 647.64 sq.m. of excess area of construction as only 1815.16 sq.m. of the constructed area could be considered as the service area. (iii) THE sanction of Map (Dokhala No.825) by the Municipal Corporation permitting respondents to construct shops on all floors, was violative of the land use provision, and therefore the respondent shall construct the residential units on the second floor. (iv) THE respondents shall amend the plans incorporating the above and get a sanction of the amended plans, after demolition of the excess area. The said order was challenged by the respondents in a writ petition before the High Court. A learned Single Judge of the High Court by order dated 26.4.2001 allowed the writ petition and quashed the show cause notice dated 13.4.1999 and the order dated 11.4.2000. He held that the two inspection reports by the officers of the Municipal Corporation and Town and Country Planning Department established that there were no violations and the construction was in accordance with the sanctioned plan and there was no justification to issue such show -cause notice or pass an order directing demolition. The appeal filed by the Municipal Corporation was dismissed by a Division Bench by the impugned judgment dated 22.11.2004.;