M/S S.R. Associates vs. Municipal Corporation

Held

The Court held that the principles of natural justice and fair play were not followed prior to passing the impugned order. The notice dated 06.10.2023 was dispatched on 09.10.2023, providing only three days for a reply before the order was passed on 11.10.2023. This insufficient time, coupled with the respondents' assertion of deeming service, clearly indicated a lack of proper opportunity for the petitioners to submit their response. The Court found that the petitioners had placed substantial material demonstrating they had obtained all necessary permissions and compounded the extra construction. Therefore, the argument regarding the availability of an alternative and efficacious remedy was not attracted, citing the Supreme Court's decision in Whirlpool Corpn. (supra) and a Division Bench judgment of the same High Court in Alok Kumar Choubey (supra) regarding exceptions to the rule of alternative remedy, particularly when there is a violation of natural justice or the authority acts unjustly and unreasonably. Consequently, the impugned order was set aside as unsustainable. The matter was remanded back to the authorities for reconsideration, with liberty to initiate fresh proceedings by issuing a fresh notice if required by law. No issue was expressly left undecided.

Facts

The petitioners, M/s S.R. Associates and others, engaged in real estate development, obtained development and building permissions for a shopping center, later changed to a nursing home. They constructed a building, and after some deviations within compounding limits, they applied for and paid a compounding fee of Rs. 15,99,908/-, which was approved by the Municipal Corporation on 10.11.2021. A work completion certificate was issued on 30.08.2022. The hospital, 'Apollo Sage Hospital', commenced operations and secured various statutory permissions. Subsequently, the Municipal Corporation, by an order dated 11.10.2023, cancelled the compounding permission and work completion certificate, directing restoration of the construction to its original sanctioned plan. The petitioners claim they were not served with any proper notice before this order was passed, despite the respondents asserting a show cause notice was issued on 06.10.2023 and dispatched on 09.10.2023.

Key Issues

1. Whether the impugned order dated 11.10.2023, cancelling the compounding permission and work completion certificate, is sustainable in law, considering the alleged violation of principles of natural justice due to lack of proper opportunity of hearing to the petitioners? (Question of law and fact, turning on principles of natural justice and procedural fairness). 2. Whether the High Court should entertain the writ petition despite the availability of an alternative remedy under Rule 25(A) of the Madhya Pradesh Bhumi Vikas Niyam, 2012, read with Sections 31 and 32 of the Nagar Tatha Gram Nivesh Adhiniyam, 1973? (Question of law, turning on the exceptions to the rule of alternative remedy). Petitioner's arguments: The impugned order was passed without providing any opportunity of hearing. A show cause notice dated 06.10.2023 was allegedly not served, and even if dispatched on 09.10.2023, it provided only three days before the order was passed on 11.10.2023, violating natural justice. The alternative remedy is not efficacious as the authority acted without jurisdiction or usurped jurisdiction. Reliance was placed on Whirlpool Corpn. (supra) and Alok Kumar Choubey (supra). Respondents' arguments: The compounding permission and completion certificate were based on incorrect disclosures and misinterpretation of regulations. Deviations were beyond permissible limits and not compoundable. The petitioners had an alternative and efficacious remedy under Rule 25(A) of the Bhumi Vikas Niyam, 2012. A show cause notice was issued on 06.10.2023, but the petitioners failed to reply.