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High Court Of Madhya Pradesh
Bishambhar Dayal, C. J. and G. P. Singh, J.
GOVIND PRASAD AGRAWAL - Appellant
Versus
ADMINISTRATOR OF THE CITY OF JABALPUR - Respondents
Misc. Petn. 28 Of 1968
Decided On : 11/06/1970
Sub-section (1) of section 294 contemplates two applications, (a) an application in writing for approval of the site with a site plan of the land, and in the case of land which is property of the Government or of the Corporation, a certified copy of the documents authorising the applicant to occupy the land, and (b) an application in writing for permission to build together with ground plans, elevation and section of the building and a specification of the work to be done. Sub-section (4) makes it clear that the application as required under clause (b) will not be necessary until approval is obtained on the application required to be made under clause (a). This is, therefore, quite clear that two applications are required by the section. It may be assumed that in a proper way both the prayers may be included in the same application. But then the requirements of both the applications and clear prayers for both the purposes must be stated in the application. [Para 6
A specific provision is made in the Act for the purpose of drawing attention of the officer concerned to the fact that the applicant is only a lessee and the land is owned by the Corporation, before he gives sanction and this not having been done, it cannot be assumed that the officer had the necessary knowledge and, therefore, it was not necessary to comply with the required procedure. When a procedure is prescribed for doing a thing, it must either be done in that way or not done at all. [Para 7
(2) Municipal Corporation Act, 1956 (MP) - Ss.295 and 294 deemed permission-when takes place-limitation for permission-is attracted only when application is made according to law and as mentioned in clause (b) of section 294 (1).
In a joint application there was only a prayer for approval. There was no prayer for granting permission to build and since under clause (b) of section 294 (1) a separate application for permission to build is necessary, this application could only be treated by the officers concerned as an application under clause (a) of that section. That being so, there was no question of any limitation within which to approve the site. Section 295, which prescribes the limitation, deals with an application under clause (b) for permission to build. [Para 8
On a plain reading of section 295 (3) of the Act, there must be a valid application for erection or re-erection of a building and the land should not belong to or vest in the Government or the Corporation. If these two conditions are satisfied and no order is passed either sanctioning or rejecting such an application, the application will be deemed to have been sanctioned. [Para 9
(3) Municipal Corporation Act, 1956 (MP) - S.294-phrase 'vests in the corporation' -refers to ownership and not possession.
The phrase 'vests in the Corporation' has been used along with the phrased 'belongs to'. Thus the whole pharse 'belongs to or vests in the Corporation' refers to ownership and not to possession. [Para 10
(4) Interpretation of deeds-lease deed-lessee prohibited 'any time' to use the premises for any other purpose-import of.
The lease deed contained a condition prohibiting the lessee 'at any time' to use the premises for any other purpose. Therefore every time the lessee wanted to use it for a purpose other than the one stipulated, he was bound to obtain previous sanction of the lessor. [Para 11
( 1 ) THE petitioner Shri Govind Prasad Aaarwal has filed this petition under Articles 226 and 227 of the Constitution for quashing the order of the respondents disallowing his application for approval of the site for erection of a cinema building and the notices dated 21st November 1967 and 8th December 1967 issued under section 302 of the M. P. Municipal Corporation Act for stopping further constructions and demolishing the constructions already made.
( 2 ) THE allegation of the petitioner on which he has asked for these reliefs is that he is the owner of Plot No. 810, Sheet No. 250, Napier Town, Bhortal, Jabalpur. He, intending to construct a cinema house on that plot, applied on 30th December 1965 to the respondents for approval of the site and for sanctioning the plan of the construction. No orders were passed on his application within 30 days as required by Section 295 (3) of the Act and, consequently, assuming that he must be deemed to have been permitted to make the constructions he proceeded with the construction. However, on 22nd February 1966, when more than 30 days had passed, an order rejecting his application seems to have been passed and was served on him. As a matter of abundant precaution he filed an appeal against this order on 16th may 1966. But while this appeal was pending, notices dated 21st november 1967 and 8th December 1967 were successively served on him asking him to demolish the constructions already made and not to proceed with further construction.
( 3 ) IT may be noted here that, according to the petitioner, after 30 days had passed from the date of his application and no orders were received rejecting the same, he had started constructions and spent more than a lac of rupees by the time the notice for demolition was received. He prayed for stay but the same was not granted. Consequently this petition was filed.
( 4 ) ON behalf of the respondents the contention is that the petition is based on misrepresentation of facts. The petitioner is not the owner of the plot as alleged by him in paragraph 1 of the petition. On the other hand, the plot vested in the corporation and the Corporation had granted a lease of this plot to the pre-decessor-in-title of the petitioner on 28th March 1938 for 30 years starting from 23rd January 1923. In the lease deed, among others, there was a specific condition as follows:-" (d) The lessee shall not at any time use the said premises or permit the same to be used for any purpose other than that of a private dwelling house without the previous consent in writing of the lessor or of such person as he may appoint for the purpose. " the contention of the respondents is that in view of the fact that the property belonged to the Corporation, the petitioner was not entitled to make any construction of a commercial nature without the previous sanction of the corporation as lessor. No application was made by the petitioner to the corporation as lessor for permitting the use of the land for other than dwelling purpose and consequently he had no right to make the constructions on that land. It is further contended that the petitioner's contentions relating to his application for erection not having been rejected within 30 days are not relevant. It was also contended that in any case the section regarding deemed sanction (Section 295 (3)) has no application to the land which vests in the Corporation and, therefore, the question of deemed sanction does not arise. The constructions made by the petitioner were therefore unauthorised and the Corporation was fully justified in issuing notices for demolition etc. ( 5 ) AFTER hearing learned counsel for the parties we have come to the conclusion that there is no force in this petition and it must be dismissed with costs. Our reasons for coming to the conclusion are as follows.
( 6 ) THE application which the petitioner gave on 30th December 1965 merely stated that he wanted to construct a cinema hall on that part
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