MUNICIPAL COUNCIL MANDSAUR Vs. MUKUTBIHARILAL

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution.

(2.) THE circumstances leading to this petition are as follows: -In the town of Mandsaur there is a house bearing Municipal No. 1/561 situated in Balaganj. This house belonged to one Shyamadevi who sold it to opponent No. 1 Mukutbiharilal under a registered sale deed dated 6 -2 -1939 for a consideration of Rs. 499. About 10 months later she executed another sale deed for an open piece of land on the western side of the portion already sold measuring 20"x57". After the initial purchase dated 6 2 -1939 opponent No. 1 Mukutbiharilal applied on 11 -2 -1939 for permission for its reconstruction and submitted along with it the copy of the sale -deed as well as the existing and the proposed construction. Permission in accordance with his prayer was granted subject to certain conditions and the opponent No. 1 reconstructed the house Several years later i. e. on 28 -11 1953 he made another application to the Municipality for permission to build upon the land which he had acquired under the second sale -deed. The Municipality considered that portion of the property as Municipal land and called upon opponent No. 1 to produce evidence in support of his alleged title and informed him that the application for permission to build would be considered after it is satisfied on the question of title. Opponent No. 1 accordingly produced evidence before the Municipal Committee who examined the same and passed a resolution on 21 -8 -1957 holding that the land in question was Municipal land. The result was that the application of opponent No. 1 for sanction to build was rejected. There was an appeal to the Collector against this order of the Municipality refusing the opponent. No. 1 permission to build The Collector proceeded to examine the question of title and came to the conclusion that the title was with opponent No. 1, He therefore directed the quashing of the order, of the Municipality whereby it had refused permission to build to opponent No. 1 and sent back the matter for consideration in accordance with the existing rules. The present petition is directed against that decision.

(3.) MR . K. B. Saxena, who appeared for opponent No. 1, on the other hand contended that where the question of title was involved in the decision or order of the Municipality there could be no appeal under the Gwalior Law. But since the proceeding had not resulted in any final decision the power of appeal will be governed by the provisions contained in the new Act viz. the Madhya Bharat Municipalities Act, No. 1 of 1954. The learned counsel referred to Section 191 of the Madhya Bharat Municipalities Act, No. 1 of 1954, and contended that unlike the former Gwalior Municipalities Act there is no specific prohibition regarding entertainment of appeal on the question of title. He therefore contended that the action of the Collector in going into the question of title cannot be said to be without jurisdiction.