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1973 Supreme(MP) 12
High Court Of Madhya Pradesh
A. P. Sen and G. L. Oza, JJ.
MOOLCHAND - Appellant
Versus
INDORE MUNICIPAL CORPORATION - Respondents
M. P. 59 Of 1970
Decided On : 01/30/1973
B.P.JHANJHARIA, C.M.Chaphekar, S.S.SHARMA
Headnote:(1) Municipal Corporation Act, 1956 (MP) – Ss. 295 & 403–Commissioner refusing sanction–order appealable–appeal lies to the Corporation.
The order passed by the Commissioner refusing sanction for the galleries is apparently an order under section 295 of the Act. This order is clearly appealable under section 403. Sub-section (2) (a) of section 403 provides that any person aggrieved by any notice or order issued or other action taken by the Commissioner under the sections specified in the provision including section 295 of the Act may appeal to the Corporation.
(Para 7)
(2) Municipal Corporation Act, 1956 (MP) – Ss. 421 (1), 403 & 295– Appeal Committee giving permission to construct–reference lies to the State Government.
Apparently section 421 (1) of the Act is in two parts. The first part refers to the execution of any resolution or order of the Corporation or of any other authority or officer subordinate thereto. The second part, which has been joined with the first by the ward or refers to the doing of any act which is about to be done or is being done. The second part has been further limited to 'being done by or on behalf of the Corporation'. Consequently, the contention that where the Appeal Committee has granted sanction nothing remains to be done by or on behalf of the Corporation and so this section would be not be applicable, cannot be accepted. The present case would clearly fall within the ambit of the first part of the section which talks of the execution of any resolution or order and where it is not provided that the execution has to be by the Corporation or any authority on its behalf. Consequently, this part of the section will cover cases where the Commissioner or the Appeal Committee, by a resolution or order, sanctions or refused sanction for erection or re-erection of a building. This conclusion is also supported by the proviso to section 295 of the Act.
(Para 8)
This proviso clearly contemplates the suspension of an order under section 295 by the Government exercising jurisdiction under section 421 of the Act. It cannot, therefore, be doubted that a reference made to the Government under section 421 of the Act can be considered by the Government and it will be within the jurisdiction of the State Government to suspend or modify an order or resolution passed by the Commissioner or the Corporation (Appeal Committee) pertaining to sanction or refusal of sanction to the construction or reconstruction of a building.
(Para 8)
(3) Municipal Corporation Act, 1956 (MP) – S. 421–passing of a final order–order affecting a third person–opportunity to hear such party should also be given.
The scheme of section 421 clearly indicates that in the first place the Government can only pass an order suspending the execution of an order or resolution. Thereafter it can pass a final order only after affording an opportunity to the Corporation to file a representation. This clearly goes to show that no order against the Corporation can be passed by the State Government without affording an opportunity to Corporation. Apparently, therefore, when the State Government acts under section 421 of the Act, it is expected to follow the principles of natural justice. In view of this scheme of the section, it cannot be contended that when the matter refers to a private individual whose rights are involved, the Government is expected to act under section 421 of the Act without affording him any opportunity of representation or hearing. In that case as well, the State Government is expected to follow the principles of natural justice. Consequently when the Government exercises jurisdiction under section 421 of the Act, it is bound to act in accordance with the provisions of natural justice and therefore, before passing a final order it is expected to afford an opportunity to the person concerned to make a representation and also the opportunity of hearing.
(Para 10)
( 1 ) THIS is a petition filed by the petitioner against an order passed by the State government under Section 421 of the Madhya Pradesh Municipal Corporation Act, 1956, (hereinafter called the Act) setting aside the order passed by the appeal committee of the Indore Municipal Corporation granting permission for construction of a overhanging balcony which initially was refused by the commissioner of the Corporation.
( 2 ) ACCORDING to the petitioners, they are the owners of House No. 3 on Street No. 2, in Murai Mohalla, Sanyogitaganj, Indore within the limits of the Indore Municipal corporation. The petitioner decided to reconstruct the house, and consequently on 30th June, 1967, they submitted an application for permission to build in accordance with the plan submitted along with that application. They also submitted along with this application what was required under Section 294 of the act. In the proposed plan, the petitioners had shown galleries projecting to the extent of 3 feet on the lane in the eastern side and on the road on north side of the proposed building. By his Dakhla No. 744 dated the 4th August 1967 the commissioner of the Corporation granted sanction for construction of the building but refused permission for the proposed gallery in the east and in the north of the building on the ground that construction of these galleries was contrary to the bye-laws. Against this order of the Commissioner the petitioners preferred an appeal to the Appeal Committee of the Corporation under Section 403 of the Act. The Appeal Committee after hearing the parties and inspecting the site by its order, dated 13th March, 1968, allowed the appeal and granted permission for construction of the galleries as prayed for. The Appeal Committee directed the commissioner of the Corporation to grant sanction accordingly. Thereafter the commissioner filed a review petition on 13th March, 1968, under Section 403 (7)of the Act before the Appeal Committee for reconsideration of its order. The appeal Committee, after hearing the parties, dismissed the review petition by its order dated the 22nd March 1969. According to the petitioners, after this order they again submitted plans for the construction of the galleries on 26th April, 1969, to the Commissioner for sanction in accordance with the directions of the appeal Committee. According to the petitioners, after these plans were submitted the Commissioner was bound to grant sanction to the petitioners. But when they did not receive any communication from the Commissioner for a period of sixty days from the date of submission of the plans afresh after the decision of the appeal Committee, they commenced the work and completed the galleries as shown in the plan. This, according to the petitioners, was completed in the middle of August, 1969. According to the petitioners, on 1st September, 1969, they received a letter from the Commissioner, bearing No. 1271, dated the 30th august, 1969, stating that after the order of the Appeal Committee the commissioner had made a reference to the Government and he had now received orders from the Government that the order of the Appeal Committee may not be carried out They submitted a reply to the Commissioner stating that as they had received no communication from him for a period of sixty days and they presumed the sanction as indicated in Section 295 of the Act, and therefore, they completed the construction of the galleries. Thereafter the petitioners received a notice from the Commissioner (No. 847, D/- 28-4-1970) stating that the State Government, by its letter No. 3542 dated the 18th March, 1970, had accepted the reference made by him. The Commissioner, therefore, asked the petitioners to remove the construction of the galleries within one week; otherwise a gang would be sent to pull down the galleries constructed by the petitioners. Aggrieved by this notice, the petitioners have filed this petition before this Court. ( 3 ) IT was contended on be
