KAUSHALKUMAR Vs. INDORE MUNICIPAL CORPORATION

JUDGEMENT

(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Corporation had sanctioned plans for construction of Gumties on 4 -10 -1986 but on 7 -11 -1986 the said sanction was withdrawn by the Municipal Corporation.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.) 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 but it does not mean that without a suit being filed an injunction could be passed on an application. As regards the opportunity of hearing on the application under Order 7, Rule 11, Civil Procedure Code Shri Fazal Hussain submitted that in fact arguments were advanced on merits on behalf of the applicants before the trial Court and it could not be said that they were not heard or did not have the opportunity to meet the challenge under Order 7, Rule 11, Civil Procedure Code. Shri Fazal Hussain invited my attention to the decisions of the Supreme Court reported in AIR 1988 SC 1341 and AIR 1983 SC 76 as also a decision of the Allahabad High Court reported in AIR 1988 All 50.