Compounding of an offence under Section 400(1)(b) of the M. P. Municipal Corporations Act, 1956, does not legalize the illegal construction.

V.S. Kokje, J.

1. This is a revision application challenging the order dated 9th July, 1990 passed by the Xth Addl. Judge to the Court of District Judge, Indore in M. J. C. No. 19 of 1990. The case arises out of proceedings initiated on an application under Section 307(5) of the M. P. Municipal Corporations Act, 1956 (hereinafter referred to as 'the Corporation Act').

2. The applicant before this Court had filed the aforesaid application under Section 30 before the Trial Court complaining that non-applicants Nos. 3 to 17 had commenced construction of Gumities adjacent to the applicant's house No. 69, Sitlamata Bazar, Indore. It was alleged that the Municipal Corporation had sanctioned plans for construction of Gumties on 4-10-1986 but on 7-11-1986 the said sanction was withdrawn by the Municipal Corporation. The non-applicants Nos. 3 to 17 went to civil Court and obtained an injunction restraining the Corporation from dismantling the construction. Thus, the Gumties were standing on the land under the cover of an injunction. The applicants complained that the said construction was beyond even the sanctioned plan. The matter went before the Appeal Committee of the Corporation. On 20-3-1987, the Appeal Committee allowed compounding of the breach committed by the non-applicants Nos. 3 to 17 on payment of Rs. 7,500/- as compounding fees, which was deposited on 25-7-1987. Applicants thereafter filed an application under Section 307(5) of the Corporation Act initiating the proceedings out of which the present revision application arises. In these proceedings an application under Order 7, Rule 11, Civil Procedure Code was filed by the non-applicants Nos. 3 to 17 on 1-7-1989 which has been allowed by the trial Court and the application under Section 307(5) of the Corporation Act has been rejected. Against this, the present revision petition is directed.

3. Shri M.G. Upadhyaya, the learned counsel for the applicants submitted that firstly, application under Order 7, Rule 11, Civil Procedure Code filed on 1-7-1989 deserves to be dismissed by the trial Court on the short ground that the same application had already been dismissed on 12-10-1989 by the trial Court. Shri Upadhyaya submits that even as long back as in 1987, the application under Section 307(5) of the Corporation Act, was held to be maintainable and, therefore, the impugned order is clearly without jurisdiction. Shri Upadhyaya further submitted that in the face of earlier dismissal of the application, the Court did not have any inherent powers to suo motu reject the application as not maintainable applying Order 7, Rule 11, Civil Procedure Code or Section 151 of the Code. Shri Upadhyaya further submitted that since the application under Order 7, Rule U, Civil Procedure Code filed on 1-7-1989 had already been decided, the applicants had no notice that the Court will suo motu act under Order 7, Rule 11, Civil Procedure Code and reject the application and, therefore, the applicants have not been provided adequate and proper opportunity of hearing against suo motu exercise of its powers by the Court. On merits Shri Upadhyaya submitted that Appeal Committee had no power to compound and, therefore, the compounding order by the Appeal Committee is without jurisdiction and illegal. He further submitted that compounding of the offence does not give the non-applicants Nos. 3 to 17 a licence to retain illegal construction.

4. On the contrary, on behalf of non-applicants Nos. 3 to 17 Shri Fazal Hussain submitted that the Appeal Committee had recommended compounding and had not compounded the offence itself. According to him, the appeal was conditionally allowed and in compliance with that condition the Commissioner compounded the offences. Shri Fazal Hussain further raised an objection that an independent application under Section 307(5) of the Corporation Act was not maintainable because this section is only an enabling provision which enables the District Court to pass an injunction bu