Surajmal Agrawal vs Municipal Corporation and Another

Satish K. Agnihotri, J.—By this petition, the petitioner seeks a direction to the respondent-Municipal Corporation, Bilaspur to take immediate action for removal of encroachments and illegal construction on the parking area of Rajiv Plaza Commercial Complex, Bilaspur. He further seeks a direction to take appropriate action against the illegal encroachers. The facts, in brief, as projected by the petitioner are that the petitioner is the leaseholder of the shop No. 23, 24 and 25, situated in Block F of Rajiv Plaza Commercial Complex, Bilaspur. The said commercial complex was constructed by the respondents after it was handed over by the State Government to the respondent/Corporation. The said complex was constructed after approval of the map by the all the concerned departments, which includes construction, parking area, marginal open space, size of the shops and gallery. For the above three shops, three separate agreements were executed between the petitioner and the respondent/Corporation and thereafter, the possession of the shops were handed over to the petitioners in the year 2002. It is the case of the petitioner that just in front of the petitioner''s shops, which is a parking area as per the sanctioned map, some of the encroachers i.e. the intervenors in the instant case, have raised illegal constructions and creating hindrance and obstruction to the business of the petitioner which is causing great financial loss. The petitioner made various complaints to the respondent/Corporation for removal of the structures but nothing could be done till date. Thus, this petition seeking a direction, as aforestated.

Shri Shrivastava, learned counsel appearing for the petitioner would submit that the intervenors have raised construction which is illegal and without any authority of law. No permission has been granted by any of the authorities for construction of the said shops, and the respondent/Corporation ought to have taken action by demolishing the structure. The respondent/Corporation, in its sanctioned map had shown the place as a parking area where the illegal construction is situated. It is the responsibility of the respondent/Corporation to remove all the illegal constructions and encroachments. However, he fairly admits that the intervenors are the owners of the land in dispute where the respondent/Corporation had promised to construct parking area. In support of his contention, Shri Shrivastava would rely on a decision of the Supreme Court in Municipal Council, Ratlam Vs. Vardichan and Others, and the decision of this Court Mahendralal Saluja & Another v. Municipal Corporation Bilaspur W.P. (C) No. 467/2012, decided on 02.04.2012, wherein it was observed that the Municipal Corporation demolish the illegal construction.

On the other hand, Shri Kachhwaha, learned counsel appearing for the respondent/Corporation would submit that the land over which the illegal construction is situated, belongs to private persons and it is not the land of the State or the respondent/Corporation. Shri Kachhwaha would further submit that one of the intervenor namely Smt. Vimla Devi Khandelwal, who is the owner of plot, moved an application in the year 1999 for construction of shop for which permission was also granted. However, she could not construct the shop, thereafter also, she moved various applications for renewal of the permission which was extended time to time but she could not construct any shop. If the construction is not raised within a permission of one year from the date of permission granted, the same automatically stands cancelled. Thus, all the permissions granted earlier stood cancelled. After construction of the commercial complex, the respondent/Corporation had issued notice to Smt. Vimal Devi Khandelwal but the same was not removed and she filed a civil suit before the Court of 1st Additional District Judge, Bilaspur in which she succeeded to obtain an interim stay order in her favour. The respondent/Corporation has not filed any para-wise reply to the petition, however, during the course of argument, Shri Kachhwaha submitted that the intervenors, who are the land owners, have not been impleaded as party respondent by the petitioner. Thus, this petition may be dismissed on this count alone.

Shri Koshy and Shri Rajeev Shrivastava, learned counsel appearing for the respective intervenors would submit that admittedly, the land over which the alleged illegal construction has been raised, belongs to the intervenors. However, the petitioner has no right to question as to on what basis those construction has been raised, as the same can be done only by the competent authority i.e. the respondents in this case. Since the land belongs to the intervenors, the same cannot be allowed to be used a parking place for the convenience of the petitioner after removing the intervenors from their lawful possession of the area in dispute.

Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.

There is no quarrel on the issue that the Municipal Corporation may demolish any illegal construction. However, in the instant case, the fact remains that the intervenors are the land owners over the land, the petitioner is seeking a direction to the respondent/Corporation to construct parking area.

The initial intention of the petitioner seems to obtain a direction to the respondent/Corporation, without impleading the intervenors, who are necessary parties in this petition. It is indisputable that the land in question is owned by two intervenors namely Smt. Vimla Devi Agrawal and Mangat Rai Agrawal. One of the intervenors i.e. Smt. Vimla Devi Agrawal has filed a civil suit against the action taken by the respondent/Corporation and the respondent/Corporation has been injuncted.

Even otherwise, so long as the land continues in possession of the private persons i.e. the intervenors, no direction can be issued to the respondent/Municipal Corporation to acquire the land or to construct a parking area over it, as was proposed by the respondent/Corporation. The parking area may be a facility for a shop but the lease was granted to the petitioner of the shops only, not for the parking area which is under the ownership of the private persons. If the petitioner has any grievance, he may take recourse to competent jurisdictional civil court. However, in the facts of the case, I am of the view that no direction as sought for in this petition by the petitioner, can be issued.

The petition, being meritless, deserves to be and is accordingly dismissed. No order as to costs.