I am grateful to Dr MN Buch for acknowledging my contribution. In this matter of vital public interest you may like to publish my polite response to his letter dated 26.11.2006. Lakhs of people in Bhopal and other towns live in flats and they should know their rights and obligations.
1. Encroachers had contested in court whether Bhopal Municipal Corporation (BMC) was competent to take action in the case of Ansal Apartments, which has a registered board of Managers (Association).
BMC was made respondent No. 1, in the petition filed before the first Civil Judge Class-I, in the Court of VIIIth Additional District Judge, Bhopal and in the High Court of Madhya Pradesh. In Para-11 of her order dated 05.09.2005 case No. 42A/2005, the first Civil Judge-Class - I has specifically mentioned BMC is fully competent and empowered to remove the encroachments. The other two courts have not interfered in the order of the First Civil Judge, Bhopal.
2. It has been mentioned in the letter that some registered documents of the ground floor flat owners categorically indicate the area, which is set aside for the exclusive use of an apartment on the ground floor. I would like to humbly point out that no such dimensions are given in any registered document. No stamp duty has been paid for the so-called sale of the land appurtenant to the flats on the ground floor. In fact this matter in being separately investigated.
The Trial Court has found that the petitioners have not been shown to be the owners of the disputed land. In para-10 of his order in MCA No. 18/2005 the learned VIII Additional District Judge has observed as follows:-
“A common reading of the Section 3 (I) (i) and (iii) makes its clear that the common areas and facilities include ‘the land on which the building is located’ and ‘the basements, yards, gardens, parking areas and storage spaces’, are the areas which shall be common to the apartment owners. ...Similarly Section 6 (1) and (4) also makes it clear that each apartment owners is entitled to an undivided interest in the common areas and facilities in the percentage expressed in the declaration to be filed under the Act”. Thus, it is clear that common areas cannot be sold or set apart either by the builder or by the society for exclusive use of any flat owner.
3. The Hon’ble High Court of Madhya Pradesh in the petition No. 959 of 2006 has concluded that “the approach of both the courts below is proper. When plaintiffs are not shown to be the owners, no sanction to raise the construction was obtained either from Town and Country Planning Department or from Municipal Corporation, obviously on the basis of compounding which could be prayed before the Municipal Corporation, injunction could not have been granted by Courts below as plaintiffs have no prima facie case, society has no prima facie right to give permission to raise right to give permission to raise construction.
Thus, both the Courts below have exercised the jurisdiction properly. There is no error apparent on the face of record calling for an interference in this writ petition. The petition is dismissed. The Municipal Corporation in its reply before the court asserted that compounding could not be allowed as reply violate the regular line prescribed in the area. Moreover, compounding is permissible in one’s own property and not on common areas. Thus the above order should clarify doubts in this matter.
4. By raising the issue of balconies on other than ground floor, a new dimension seems to have been added in this case. Balconies on the first, second and third floors are approved as a part of the map by the Municipal Corporation and their construction has been allowed by the Corporation. They also from part of the registered documents. However, any violation can be rectified.
JL Ajmani, IAS (Retd)(With this letter we end the debate on the demolition in Ansal Apartments, Shyamla Hills)