V.M. UPADHYAY Vs. MUNICIPALCORPORATION BHOPAL

JUDGEMENT

(1.) This petition under Article 226 of Constitution of India has been filed against the order dtd. 23/12/2023 passed by the Assistant Engineer, Municipal Corporation, Bhopal, by which the petitioner has been directed to remove his construction falling within the area of 33 meters from the river, failing which action shall be taken for removal of the construction. It has also been mentioned that petitioner has constructed Sagar Premium Tower, Block C-1, and area approximately 1055 square meter on the ground floor and area approximately 6352 square meter up to the seventh floor is coming under the encroachment zone and, therefore, the same is to be removed.

(2.) It is submitted by counsel for petitioner that before issuing such an order no opportunity of hearing was given to the petitioner. It is further submitted that a coordinate Bench of this Court by order dtd. 22/9/2023 passed in the cases of Avdesh Agrawal Vs. Municipal Corporation and others and Vinit Ajmani Vs. Municipal Corporation and others in W.P. No.24093/2023 and W.P. No.24059/2023 have issued notices and have also stayed the demolition of the alleged construction.

(3.) It is further submitted that a complaint was pending before the National Green Tribunal, Bhopal Bench (hereinafter referred to as 'the NGT') and a stand was taken by the respondents that with a permission of respondents certain constructions have been raised and accordingly, the NGT had accepted that report and had directed to take action only in respect of 172 constructions. It is submitted that in fact the order under challenge is nothing but it is an eyewash because the respondents have to file their reply before the NGT by 15/1/2024 and in order to save the skin, they are issuing such notices. It is further submitted that petitioner's right under Article 300-A of the Constitution of India cannot be taken away without even giving an opportunity of hearing. It is further submitted that earlier the stand of the State Government was that the area of 33 meters shall be measured from the banks of the river and now the Principal Secretary, Urban Development and Housing, has taken a somersault and has filed an affidavit before the NGT stating that for the purpose of determining 33 meters, the respondents authorities are taking distance on the basis of revenue record and if any encroachment or illegal construction is found within the said distance which is to be maintained as open land and green belt, then the same shall be demolished and removed in accordance with law.