Shri Satish Tomar v. Heard finally
Case at a glance
Outcome
Disposed of
[14] Thus, the present Writ Petition is disposed of by setting
Judgment
issue on the same factual background. [2] For convenience, the facts from WP No.1580/2012 have been taken in this order. [3] This Writ Petition has been filed by the petitioner challenging the demolition notice dated 10/2/2012. [4] In brief, the case of the petitioner is that the petitioner had purchased the Shop No. LG-9 in building situated at Plot No.28, Bada Sarafa, Indore through the registered sale deed dated 21/6/1995. At the time of purchase of the shop, sanction map was shown to the petitioner and the petitioner was informed that the construction is legal construction done in accordance with the sanctioned plan. The petitioner has 2 now been suddenly served with the demolition notice dated 10/2/2012, requiring him to remove the illegal construction within three days failing which he will have to bear the expenses for the loss caused during demolition. [5] Learned counsel appearing for the petitioner submits that before issuing the impugned notice, no opportunity of hearing has been given to the petitioner.
His construction is as per the sanctioned plan and there is no unauthorised construction and that even if there is minor deviations, the same is compoundable, therefore, without complying with the principles of natural justice, the impugned demolition notice could not have been issued. [6] Learned counsel for respondents submitted that earlier a WP No.1704/1999 was filed in public interest making the complaint of about 170 illegal constructions existing in the city and the said Writ Petition was disposed of by the order dated 7/11/2006 recording the undertaking of the Municipal Corporation that the Corporation was deligently taking action against the illegal construction. Against this order, the SLP is pending before the Supreme Court. He further submitted that the present petitioner is not entitled to any opportunity of hearing because builder was a party in the Writ Petition. 3 [7] I have heard the learned counsel for parties and perused the record. [8] In the reply, the respondents have enclosed the notice Annexure R.1 to R.5 but none of these notices are addressed to the petitioners.
These notices are addressed to the builder of the premises whereas the builder has long back sold the premises in question and handed over its possession to the petitioner. [9] The petitioner in this Writ Petition has raised the specific plea that he has purchased the shop and the construction of the shop is in accordance with the sanction plan, therefore, the petitioner is atleast entitled to an opportunity of hearing to place the relevant documents, available with him before the authorities to demonstrate that the construction in question is lawful construction, before any action is taken by the respondents for demolition of the alleged illegal construction. [10] In the Writ Petition, the petitioner has raised the specific plea that prior to the impugned demolition notice, no show cause notice was given to him. The respondents have not placed any material on record to show that earlier any show cause notice was issued to the petitioner.
The respondents have also not disputed the petitioner/s plea that before issuing 4 impugned demolition notice, no opportunity of hearing has been given to the petitioner. [11] Counsel for respondents has taken the stand that the land owner of the plot/builder who had raised the construction was a party in WP No.1704/1999, therefore, the petitioner is not entitled to opportunity of hearing. Such a stand cannot be accepted because while deciding Writ Petition No.1704/1999 individual cases were not examined and no finding in respect of construction in question was recorded and even otherwise any action of the respondents in demolishing any part of the shop in question will prejudicially affect the petitioner who is undisputedly owners and in possession of the shop, therefore, he is entitled to opportunity of hearing. [12] It cannot be disputed that the respondents must remove the illegal construction but before holding any construction to be illegal construction, it is necessary for them to examine all the relevant documents.
Operative part
Nothing has been pointed out by the respondents before this Court to show on what basis the respondents have reached to the conclusion that any part of the construction of the premises in question is illegal construction. [13] From the record, it appears that after passing of the order 5 dated 7/11/2006 in WP No.1704/1999, the respondents were sitting tight over the matter and now they have suddenly woken up and want to demolish the construction within three days even without giving any opportunity to the concerned shop owners to place their documents and put forth their stand before the respondents. Such an action of the respondents cannot be approved. [14] Thus, the present Writ Petition is disposed of by setting aside the impugned demolition notice dated 10/2/2012 and by issuing the following directions:- (I) The respondents will issue a show cause notice to the petitioner, clearly mentioning the details of illegal construction, if any, within one week from the date of receipt of certified copy of this order.
(II) The petitioner will file reply to the show cause notice supported by all the relevant documents within one week from the date of receipt of show cause notice. (III) The concerned respondent will give an opportunity of hearing to the petitioner and take an appropriate decision in accordance with law after considering the documents produced by the petitioner as expeditiously as possible preferably within a period of 6 one week from the date of receipt of reply of the petitioner. (IV) Any prayer for compounding will also be decided expeditiously in accordance with law. [15] Original order is kept in the record of WP No.1580/2012 and a copy of the same be kept in the record of other connected Writ Petitions. (PRAKASH SHRIVASTAVA) JUDGE VM
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: [14] Thus, the present Writ Petition is disposed of by setting
Which court decided this case, and when?
Madhya Pradesh High Court, on 29 Feb 2012. The bench was PRAKASH SHRIVASTAVA.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.