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 NOT REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5031 OF 2005

Indore Municipal Corporation & Anr. … Appellants

Vs.

Dr. Hemalata & Ors. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

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:-

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(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.

2. 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

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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:-

________________________________________________________ S.No. Direction  As per sanction On the spot ----------------------------------------------------------------------------------------- 1 On the North 6.0 Mtrs. 6.0 Mtrs. 2 On the South 23.0 Mtrs.      (23+12)  35.0 Mtrs. 3 On the West 3.0 Mtrs. 3.0 Mtrs.

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4            On the East                               3.0 Mtrs.                                   3.05 Mtrs.   

3. 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.

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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:   

___________________________________________________________ Sl.No.    Floor Constructed area Actual constructed Remarks                                as per sanctioned        area on the spot     

building map  _____________________________________________________________________

1. Parking and  (Basement) Utilities 2335 sqm                       ---

2335 sqm

2. Lower 1172.33 sqm 1093.84 sqm         Less than sanctioned Ground                               

3. Upper 1172.66 sqm 1104.97 sqm      Less than sanctioned Ground                                         

4. First 1172.78 sqm 1136.47 sqm      Less than sanctioned Floor                                     

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5. Second 1172.78 sqm 1136.47 sqm      Less than sanctioned Floor                                         

____________________________________________________________________

4. 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.

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(iv) The respondents shall amend the plans incorporating the above and  

get a sanction of the amended plans, after demolition of the excess area.  

5. 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.  

6. The said judgment is under challenge in this appeal. The appellant  

raised the following four contentions before us :

(i) The sanction of the development/construction plan for commercial  

use as against residential-cum-commercial use was contrary to the Rules  

and the direction in the order dated 11.4.2000 that the premises should be  

converted to residential-cum-commercial use was justified.

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(ii) The direction to close the openings and construct a compound wall  

on the Western side, (that is facing the Fiftysix Shops Road) was justified  

as the respondents had left a set back of only three meters on the western  

side and therefore it could not be treated as the frontage but only  a side  

of the building.

(iii) As the construction made by the respondents was in excess of the  

permissible FAR, the excess area of 647.64 sq.m. had to be demolished.

(iv) The interpretation of the High Court in regard to section 299 of the  

Madhya Pradesh Municipal Corporation Act, 1956 (‘Act’ for short) was  

erroneous.

Re : Contention (i)

7. The appellants contend that the use of the premises exclusively for  

commercial purpose would violate the Land Development Rules, which  

require the land use to be in conformity with the development plan. It was  

contended that  the initial  sanction by the Town and Country Planning  

Department was for construction of residential-cum-commercial building;  

that  though  the  Municipal  Corporation  had  sanctioned  a  plan  for  

construction  for  commercial  purposes  on  21.2.1995,  renewed  on  

13.5.1997, at the time of renewal dated 16.4.1998, it was made clear that  

the permission was for residential-cum-commercial purposes; and that in  

deviation thereof, the respondents had constructed a commercial building  

instead of residential-cum-commercial building.

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8. The respondents submitted that this alleged irregularity was not the  

subject-matter of the show-cause notice; that they never disputed the fact  

that the sanction was for residential-cum-commercial use; and that as the  

actual  completion  having been held  up on  account  of  the  show-cause  

notice and the order dated 11.4.2000 and as occupancy certificate is yet to  

be issued, the question of the building being put to any objectionable user  

does not arise. It was submitted that only if the respondents failed to use  

the building in accordance with the sanctioned/permitted user, there can  

be a cause to take action against them.  

9. The  fact  that  the  sanction  is  for  a  residential-cum-commercial  

purpose, is not disputed by the respondents. They have never claimed that  

they will use the building contrary to the permissible user. Even before  

the  completion  of  the  construction  and  obtaining  of  occupation  

certificate, without issuing a show-cause notice alleging such misuse, an  

order has been issued alleging a violation of the permitted user. There is  

no occasion for the second appellant  to assume that  the respondent is  

likely  to  violate  the  sanctioned  user.  After  the  issue  of  occupancy  

certificate, if there is any violation of sanctioned use, it is always open to  

the Municipal Corporation to take appropriate action in accordance with  

law at that stage. The finding in the order dated 11.4.2000 that there has

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been a violation of the Rules in this  behalf,  is  unwarranted and at all  

events premature.

Re : Contention (ii)

10. The Town Planning Department granted the planning permission  

requiring  the  respondents  to  leave  margin  open space of  3  m.  on  the  

Eastern and Western sides, 6 m. on the Northern side and open space as  

required by the rules on the southern side vide the Planning Permission  

dated  7.2.1995 as  amended  by order  dated  31.5.1997.  Rule  56  of  the  

Rules  deals  with  exterior  open spaces.  Sub-rules  (1),  (2)  and (3)  deal  

with  residential  buildings.  Sub-rule  (5)  provides  that  the  open  spaces  

mentioned in sub-rules (1) to (3) shall apply to residential buildings, up to  

a height of 10 m. The building of the respondents is a residential-cum-

commercial building of the height of 12 m. Therefore, the provisions of  

sub-rules (1) to (3) of Rule 56 will not apply. Sub-rule (6) of Rule 56  

provides that in respect of all buildings of a height of above 10 m., the  

open spaces on the sides and the rear, shall be as given in Table 5 and  

spaces shall be governed by Rule 62(a), depending upon the height of the  

building. Table 5 requires that in regard to buildings of a height of more  

than 10 m. (but less than 15 m.)  the margin open space to be left around  

the building, except on the front side, shall be 3 m. It is evident from the  

order  dated  31.5.1997  of  the  Joint  Director  that  it  had  sanctioned  a

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marginal open space on the western side as 3 m. As the Southern side will  

be the front of the building (facing M.G. Road) and the western side will  

be one of the sides of the building, the margin on that side should be only  

3 m. It is thus seen that the margin open space required to be left on the  

Western side both under the rules and as per the sanction granted by the  

Town and Country Planning Department and the Municipal Corporation  

was only 3 m. The assumption of  the appellants  that if  any doors are  

opened on the western side, the western side will become the front side of  

the building and in that event, there should be 4.5 m. setback on that side,  

is  without basis.  Similarly the assumption of the appellants  that  if  the  

western side should be treated as one of the sides of the building and not  

the  front,  there  cannot  be  any  doorways  on  that  side  is  also  equally  

baseless.  

11. The property has roads on two sides that is, on the south and the  

west. The sanctioning authority had accepted that the frontage is to the  

South and in fact required that there should not be any construction to a  

depth of 75 ft. on the southern side, which has been complied with.  The  

rules do not contain any provision that the entrances or doors should be  

only on the front side or that there cannot be any entrances on other sides.  

In fact, Rule 14 provides that no permission shall be required for opening  

any  doors  on  any  side.  Therefore,  the  insistence  by  the  Municipal

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Corporation that the open margin space on the western side should be 4.5  

m. nor require that no door or shutter on the western side of the building,  

is  not  in  pursuance  of  the  Rules  and in  fact,  unreasonable.  It  follows  

therefore that the order dated 11.4.2000 directing the respondents to close  

all doors on the western side and to construct a compound wall on the  

western side, is wholly unauthorised, arbitrary and unreasonable.  

Re : Contention (iii)

12. The extent of construction is a question of fact. The learned Single  

Judge and Division Bench after examining the records have concluded  

that there was no excess construction. Therefore, this Court re-examining  

the said question of fact does not arise. However, as elaborate arguments  

have been addressed with  reference to the  documents,  we will  briefly  

refer to them. The sanctioned plan enables and authorises the respondents  

to construct a building with a plinth area of 1172.78 sq.m. The plan also  

sanctions  service  areas.  The  sanctioned  building  plan  permits  

construction of about 1173 sq.m in each floor, that is the lower ground  

floor, upper ground floor, first floor and second floor. It is also not in  

dispute that the actual constructed area is only 1093.84 sq.m., 1104.97  

sq.m., 1136.47 sq.m. and 1136.47 sq.m. in the said four floors. Thus the  

actual constructed area in each of the floors is less than the permissible  

and sanctioned area. Sanctioned building plan also permits construction

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of a basement with parking and utilities measuring 2335 sq.m. and the  

actual constructed area is the same without any excess.  

13. A joint inspection report dated 1.11.1999 by four senior officers of  

the Municipal Corporation and four officers of the Directorate of Town &  

Country Planning confirms that the area constructed is less than what was  

sanctioned and that there is no violation. In view of it, the allegation of  

the  Building Officer  in  the  impugned notice  and order  that  there  was  

647.64 sq.m of excess construction, is without basis.  

14. When  the  Department  of  Town  and  Country  Planning  and  the  

Municipal  Corporation  which  are  the  sanctioning  authorities,  have  

sanctioned construction of a building with a basement of 2335 sq.m. and  

upper  floors  of  4690.55  sq.m.  and  the  construction  is  less  than  the  

sanctioned area, the question of appellants holding that there was excess  

construction, does not arise. Further, having regard to the applicable bye-

laws, the service area and open balcony area will have to be excluded.  

The sanctioned plan shows the total area of the plot as 3601.74 sq.m. and  

as  per  the  permissible  FAR,  5402.61 sq.m.  could be constructed.  The  

total area constructed is only 4471.75 sq.m and even if the balcony area is  

included, it will be less than the area permissible as per the FAR. As far  

as coverage area is concerned, 33% of 3601.74 sq.m. will  be 1188.57  

sq.m. Even if 45.72 sq.m. left for road-widening is deducted and site area

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is  taken  as  3556  sq.m.,  33%  coverage  will  be  1173.48  sq.m.  The  

sanctioned plan permits a ground floor coverage of 1173 sq.m. Therefore,  

neither the land coverage percentage is exceeded, nor the permitted FAR  

is exceeded, nor the sanctioned construction area is exceeded. The third  

ground also therefore does not have any merit. The learned Single Judge  

and the Division Bench considered these aspects and rightly rejected the  

contention of the appellants.

15. Learned counsel  for the  appellants  submitted that  the  appellants  

had  appointed  a  private  agency  to  measure  and  submit  the  total  

constructed area and as per their report, the actual constructed area had  

exceeded the permissible constructed area and they sought permission to  

produce the said report  as additional evidence and the Division Bench  

erroneously refused to accept the same. As many as eight officers, that is  

four officers of the Municipal Corporation and four officers of the Town  

and Country Planning had held detailed joint inspection on 27.10.1999 to  

30.10.1999 wherein the actual constructed area was recorded in detail.  

The inspecting officers included the Building Officer of the Municipal  

Corporation and the Joint Director of the Town & Country Planning. It is  

of some interest to note that the Building Officer (second appellant) who  

prepared  the  said  inspection  report  after  four  days  of  extensive  

measurement, is the same officer who passed the impugned order dated

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11.4.2000. The appellants never contended that the said joint inspection  

report  was  erroneous.  When  the  said  report  has  been  acted  upon and  

accepted, there is no justification for the appellants to get a private report  

during the pendency of appeal before the High Court to contend that the  

actual  constructed  area  was  marginally  more  than  the  sanctioned  

constructed area. Obviously, the appellants cannot say that the inspection  

report prepared by the second appellant showing the actual constructed  

area  is  to  be  ignored.  The  Division  Bench  of  the  High  Court  rightly  

rejected the request of the appellant to produce the said private report as  

additional evidence.

Re : Contention (iv)

16. The last contention relates to the power of Municipal Commission  

under section 299 of the Madhya Pradesh Municipal  Corporation Act,  

1956 (‘Act’ for short). The High Court has held that the power to direct  

modification of the sanctioned plan can be used by the Commissioner  

before  the  work  has  been  commenced  and  the  directions  given  on  

11.4.2000, almost at the completion of the construction of the building,  

was contrary to the provisions of section 299 of the Act.  

17. The  appellants  contended  that  section  299  enabled  the  

Commissioner to direct modification of the sanctioned plan at any time

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before  actual  completion  and  issue  of  completion  certificate.  The  

respondents on the other hand submitted that section 299 consists of two  

parts and that both parts contemplate the Commissioner acting before the  

work  is  commenced.  It  is  submitted  that  the  first  part  of  section  299  

enables  the  Commissioner  to  revoke  the  permission  or  direct  

modifications before the work has commenced and that the second part of  

the section enables the Commissioner to direct that the work shall not be  

proceeded  with  unless  and  until  all  questions  connected  with  the  

respective  location  of  the  building  and  street  has  been  decided  to  its  

satisfaction.  It  was  further  submitted  that  the  first  part  of  the  section  

clearly  states  that  any  revocation  should  be  before  the  work  has  

commenced; that the section also implies that the power under the second  

part should be exercised before the commencement of the work, as it is  

related to the location of the building and the street; and that if the dispute  

is not in regard to the location of the building or the street, the question of  

exercising  power  under  second  part  of  section  299  does  not  arise.  

According to them, once a building has been sanctioned and the work has  

been  commenced,  after  identifying  the  location  and  street,  the  

Commissioner  has  no  power  to  revoke  or  modify  the  sanction  under  

section 299 of the Act, though he may have such power under some other  

provision, for other reasons. It is further submitted that where a sanction  

is  given  by  the  Department  of  Town  and  Country  Planning,  the

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Commissioner  of  the  Corporation  or  a  Building  Officer  of  the  

Corporation cannot revoke or modify it. It is unnecessary to examine the  

scope of section 299 of the Act in this case as it does not arise for our  

consideration.

18. The respondents have alleged that some officers of the Municipal  

Corporation have tried to prevent them from completing and using their  

building at the behest of some businessmen on the Fifty Six Shops Road,  

whose  business  is  likely  to  adversely  affected  by  the  completion  and  

functioning of shops in their building. The appellants have denied any  

malafides or bias and stated that the officers of the Corporation were only  

doing their duty to implement the municipal rules and regulations. We do  

not find it necessary to examine or record any finding in this regard, for  

disposal of this appeal.  

19. We find that the appellants have not made out any case to interfere  

with the concurrent findings of the learned Single Judge and the Division  

Bench. The appeal is therefore dismissed.  

………………………..J. (R V Raveendran)

New Delhi; ……………………….J. February 24, 2010. (Aftab Alam)