Arun Dudawat And Ors. vs Municipal Corp., Gwalior And Ors.

Court: Madhya Pradesh High Court
Decided on: 08-04-2026

<div> NEUTRAL CITATION NO. 2026:MPHC-GWL:11653 1 WP-2357-2005 IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE th ON THE 8 OF APRIL, 2026 WRIT PETITION No. 2357 of 2005 ARUN DUDAWAT AND ORS. AND OTHERS Versus MUNICIPAL CORP., GWALIOR AND ORS. Appearance: Shri M P S Raghuwanshi - Senior Advocate with Shri Abhishek Singh Kourav - Advocate for petitioners. Shri Shiv Shankar Bansal - Advocate for respondents. ORDER This petition under Article 226/227 of the Constitution of India has been filed by the petitioner seeking following reliefs:- "(i) The order as contained in letter Dated-6-7-2005 (Annexure - P/10), directing the petitioners to stop the construction activity be quashed and it may kindly be held that the petitioners are doing constructions in accordance with the deemed permission under section 295(3) of the Act, 1956, (ii) The resolution no.1210 dated 31.3.99 (Annexure-P/11) passed by respondent no.1 may also be quashed as the same is contrary to provision of section 292 of the Act, 1956 and provision of rule 73 of M.P. Bhumi Vikas Niyam and the same has also been passed without having any authority under law. (iii) Passing any other Order or Direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (iv) Costs of the petition may also be awarded to the petitioners. (v) A writ of Certiorari or any other suitable writ or order or direction may kindly be issued for quashing the notice/order dated 05.04.2010 (Annexure-P/18) with further direction to the Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/9/2026 7:11:04 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:11653 2 WP-2357-2005 respondents not to take any action against the house of petitioners." 2. Learned counsel for the petitioners submits that the petitioners are owners of an ancestral commercial-cum-residential property situated in Sarafa Bazar, Gwalior, which is admittedly a commercial-cum-residential area as per the Gwalior Development Scheme, 2005. It is submitted that with the intention of reconstruction, the petitioners duly applied for sanction before the competent authority, i.e. the Joint Director, Town and Country Planning, Gwalior, who after due scrutiny and compliance of formalities granted permission and sanctioned the building plan. It is further submitted that although certain no objection certificates were not mandatorily required, the petitioners nevertheless furnished the same as directed. Thereafter, in compliance with statutory requirements, the petitioners submitted an application/notice under Section 294 of the M.P. Municipal Corporation Act, 1956 (for brevity "The Act, 1956") before the Municipal Corporation and deposited the requisite fees as directed by the authorities, which clearly demonstrates acceptance of the application by the respondents. 3. It is contended that as per the scheme of Sections 293 to 308 of the Act, 1956, the Commissioner is the competent authority to grant or refuse permission for construction, and under Section 295(3), if no decision is taken within 30 days from the date of application, the permission is deemed to have been granted. Learned counsel submits that despite lapse of the statutory period, the respondents failed to take any decision on the petitioners’ application, thereby conferring a legal right upon the petitioners to proceed with construction under the deeming provision. It is argued that Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/9/2026 7:11:04 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:11653 3 WP-2357-2005 the petitioners, after duly intimating the respondents, commenced construction on 15.06.2005 strictly in accordance with the sanctioned plan and applicable rules. 4. It is further submitted that the impugned letter dated 06.07.2005, restraining the petitioners from carrying out construction on the basis of Resolution No. 1210 dated 31.03.1999, is wholly illegal and without authority of law. Learned counsel contends that the Municipal Corporation has no jurisdiction under Section 66 of the Act, 1956 to impose restrictions on grant of building permission, particularly when such restrictions are contrary to the Gwalior Development Scheme, 2005 and the M.P. Bhumi Vikas Rules. It is emphasized that the said resolution, insofar as it imposes a restriction on construction within 500 meters of Maharaj Bada, is ultra vires, not part of the agenda, and contrary to statutory provisions, and hence unenforceable. 5. Learned counsel further submits that the action of the respondents is arbitrary and discriminatory inasmuch as permissions for multi-storied buildings, markets and basements have been granted to several other persons within the restricted radius, even as close as 30 to 250 meters from Maharaj Bada, while the petitioners alone have been singled out for adverse treatment. It is also pointed out that the respondents themselves have undertaken construction activities in the vicinity, thereby exposing the mala fide and inconsistent approach adopted by them. 6. It is submitted that the very foundation of the impugned action, i.e. Resolution No. 1210 dated 31.03.1999, has admittedly been withdrawn by Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/9/2026 7:11:04 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:11653 4 WP-2357-2005 Resolution No. 446 dated 22.06.2009. In light of such withdrawal, the continuation of proceedings against the petitioners is wholly untenable and without authority of law. Learned counsel for the petitioners further submits that the petitioners had undertaken and completed the construction under deemed sanction in accordance with the applicable provisions. The respondent Corporation, having duly assessed the said construction and recovered property tax therefrom, is estopped from subsequently treating the same as unauthorized. Despite this, the respondents have issued a notice dated 05.04.2010, arbitrarily declaring the construction to be unauthorized and directing demolition within an unreasonably short span of time. Such action is ex facie illegal, being in blatant violation of the principles of natural justice, as no proper opportunity of hearing was afforded to the petitioners. The impugned notice is also contrary to the interim protection granted by this Hon’ble Court, thereby rendering the respondents’ action not only arbitrary but also contemptuous in nature. 7. It is further submitted that the letter dated 30.03.2010 (Annexure- P/19), being merely consequential to the earlier letter dated 06.07.2005 (Annexure-P/10) whereby under Section 308(b) of the Madhya Pradesh Municipal Corporation (Amendment) Act, 2005, the compounding application for construction carried out without approval or in contravention of the approved plan was rejected, and the petitioner was accordingly informed to comply with all the conditions mentioned in the referred letter and to deposit a compounding fee amounting to Rs.1,51,62,480/- in the municipal treasury, has been issued without conducting any proper enquiry Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/9/2026 7:11:04 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:11653 5 WP-2357-2005 or due application of mind to the petitioners’ case. The same, therefore, suffers from non-application of mind and procedural impropriety, and is liable to be quashed. 8. Learned Senior Counsel appearing for the petitioners, while placing reliance on the judgment rendered by the Coordinate Bench in Administrator, Municipal Corporation, Raipur vs. Charanlal Sahu in C. Revision No. 471 of 1975 (J), decided on 16.07.1976, submits that the said judgment clearly enunciates the legal position that even where construction has been commenced without prior permission, if an application seeking such permission is subsequently submitted and the same is not rejected within the statutory period of 30 days, permission shall be deemed to have been granted by operation of law. It is further submitted that upon receipt of such application, the competent authority was under a statutory obligation to consider the same and exercise its power of refusal, if warranted, strictly within the period of 30 days as contemplated under Section 295(3) of the relevant Act. However, in the present case, the respondents failed to act within the prescribed time frame and did not communicate any refusal within the said period. In view thereof, it is contended that the respondents have forfeited their right to refuse permission at this belated stage. Consequently, it is no longer open to them to contend that sanction cannot be deemed to have been granted, as such a plea is untenable in law and contrary to the settled legal position. In light of the aforesaid facts and submissions, it is prayed that this Hon’ble Court may be pleased to hold and declare that the impugned actions of the respondents are illegal, arbitrary, discriminatory, Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/9/2026 7:11:04 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:11653 6 WP-2357-2005 and without jurisdiction; quash and set aside the said impugned actions and grant protection to the construction carried out by the petitioners in accordance with law under the doctrine of deemed sanction. 9. On the other hand, learned counsel for the respondents vehmently opposed the prayer and prayed for rejection of present petition. 10. Heard counsel for the parties and perused the record. 11. Insofar as relief No.7(ii) sought by the petitioners whereby the challenge is made to Resolution dated 31.03.1999 is concerned, the said resolution has admittedly been withdrawn subsequently. In such circumstances, continuation of any action founded upon a withdrawn resolution cannot be sustained in the eyes of law, as the very basis of such action ceases to exist. 12. With regard to other reiefs, from the material available on record, it is evident that the petitioners had submitted an application/notice on 17.04.2005 under Section 294 of the Act, 1956 seeking permission for construction. It is not in dispute that the respondents did not communicate any refusal or decision on the said application within a period of thirty days as required under Section 295(3) of the Act. Even in a case where construction may have been commenced without prior formal sanction, the statutory scheme unequivocally provides that if an application seeking such permission is subsequently submitted and the same is not rejected within the prescribed period of thirty days, permission shall be deemed to have been granted by operation of law. The deeming provision embodied under Section 295(3) of the Act, 1956 casts a mandatory obligation upon the competent Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/9/2026 7:11:04 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:11653 7 WP-2357-2005 authority to consider the application and take a decision thereon within the stipulated time frame. The authority is vested with the power to either grant or refuse permission; however, such power must be exercised strictly within the statutory period. Upon receipt of the application, it was incumbent upon the respondents to scrutinize the same and, if any deficiencies or grounds for refusal existed, to communicate such refusal within the said period of thirty days. Failure to do so would result in a legal fiction whereby permission would be presumed to have been granted, and due to the said legal fiction, the applicant would acquire a vested right to proceed with the construction in accordance with law. 13. In the present case, the respondents admittedly failed to act within the prescribed period and did not communicate any order of refusal to the petitioners within thirty days from the date of submission of the application and the petitioners thereafter informed the respondents regarding commencement of construction from 15.06.2005 under the deeming provision. Consequently, the petitioners became entitled to invoke the benefit of the deeming provision, and the permission for construction must be treated as having been granted in their favour by operation of law. 14. The impugned action of the respondents in issuing the letter dated 06.07.2005, restraining the petitioners from carrying out construction, in the light of above discussion, is found to be contrary to the statutory provisions and without authority of law. 15. Further, the notice dated 05.04.2010 (Annexure P/18) and the letter dated 30.03.2010 (Annexure P/19) have been issued without proper Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/9/2026 7:11:04 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:11653 8 WP-2357-2005 consideration of the petitioners’ case and in violation of principles of natural justice. The respondents failed to appreciate that the construction undertaken by the petitioners was under deemed sanction. The impugned actions, therefore, suffer from arbitrariness, non-application of mind and lack of jurisdiction. 16. In view of the aforesaid, this Court is of the considered opinion that the impugned notice dated 05.04.2010 (Annexure P/18 ) and the letter dated 30.03.2010 (Annexure P/19) cannot be sustained in law and deserve to be quashed. 17. Accordingly, the petition is allowed. The impugned notice dated 05.04.2010 (Annexure P/18 ) and the letter dated 30.03.2010 (Annexure P/19) are hereby quashed. The respondents are restrained from taking any coercive action against the construction raised by the petitioners, which shall be treated as having been carried out under deemed permission in accordance with law. However, in the event it is found that the building has not been constructed in accordance with the sanctioned layout, the respondents shall be at liberty to initiate appropriate action in accordance with law. No order as to costs. (MILIND RAMESH PHADKE) JUDGE ojha Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/9/2026 7:11:04 PM</div>