Point of Law: Mutation of property - Service of notice through publication – no illegality exists in getting the notice published in widely circulated newspapers at the expense of applicants

ORDER :

Per Justice Anand Pathak, J

The present petition under Article 226 of the Constitution of India has been preferred by the petitioner as Pro Bono Publico in which quashment of resolution dated 8/4/2020 (Annexure P/1) and resolution dated 29/6/2020 (Annexure P/4) passed by Divisional Commissioner as Administrator of Municipal Corporation, Gwalior; whereby, the order dated 26/5/2020 (Annexure P/2) passed by Commissioner, Municipal Corporation, Gwalior and order dated 8/6/2020 (Annexure P/3) passed by Additional Commissioner, Municipal Corporation, Gwalior has been considered by the Administrator, Municipal Corporation, Gwalior (respondent No. 3 herein) and it is resolved to accept Rs. 5,000/-as publication charges from the owners/applicants for mutation of immovable properties and in lieu thereof, they have been given facility to get the notice for mutation published in the format prescribed by the Corporation.

2. It is the grievance of the petitioner that Section 167 of the Municipal Corporation Act, 1956 (for short “Act of 1956”) nowhere contemplates such mechanism whereby Corporation may seek mutation fees from applicants for publication of notice. Section 167 of the Act of 1956 does not enable charging of mutation fees, therefore, resolution passed by Corporation is illegal. In support of his submissions, learned counsel for the petitioner placed reliance over the judgment passed by Division Bench of this Court (Indore Bench) in the matter of Awas Smasya Niwaran Sansthan Vs. Municipal Corporation, Indore, 1986 (1) MPWN 290 and later on another judgment passed by another Division Bench at Gwalior in the case of Ward Sudhar Samiti, Gwalior Vs. Municipal Corporation, Gwalior, 1991 MPJR 137 while placing reliance over the said judgments. It has been submitted that action of the respondents is arbitrary and illegal. No other ground has been raised by the petitioner.

3. On the other hand, learned counsel for respondents/State opposed the prayer and submits that State Government has power as per Part IX, Chapter XXXVI-Control under Act of 1956. It is further submitted that if petitioner has any grievance; then he can approach State Government under Section 421 of Act of 1956 for redressal of his grievances.

4. Learned counsel for the Corporation also vehemently opposed the prayer. According to him, Section 133 of Act of 1956 gives sufficient powers to the Corporation to impose fees by a resolution. He relied upon Madan Gopal Agarwal Vs. District Magistrate, Allahabad, AIR 1972 SC 2656 and Gorkha Security Services Vs. Government (NCT of Delhi) and Others, (2014) 9 SCC 105.

5. It is further submitted that as per Madhya Pradesh Municipal (Achal Sampatti Antaran) Rule, 2016, especially Rule 4, Corporation has the right to invite objections by publishing a notice in two daily newspapers, and therefore, Corporation has not tried to enrich it by taking money as publication charges, but the purpose is to intimate all concerned about the mutation proceedings of the property so that litigation may be avoided in future. He also stressed over the point that if any person who intends to mutate the property caused the publication of notice on his own expenses as per the format provided by the Corporation, then Corporation has no objection to such proposition and it would be accepted as service by publication and no further amount would be asked for mutation.

6. Therefore, according to respondent/Corporation, it is not a case of unjust enrichment by imposing mutation fees per se, but it is procedural/incidental charges at best.

7. It is further submission that judgments passed by the earlier Division Bench are to be seen in that perspective only. He prayed for dismissal of the writ petition.

8. Heard learned counsel for the parties and perused the documents appended thereto.

9. Sheet anchor of the case of petitioner is two orders passed by Division Bench of this Court earlier in almost identical facts situation; wherein, then petitioners also resist