MOOLCHAND Vs. INDORE MUNICIPAL CORPORATION

JUDGEMENT

(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 behalf of the petitioners that under Section 421 of the Act no reference could be made to the State Government in a matter pertaining to sanction for building construction. It was also contended that alternatively that even if the Government had jurisdiction under Section 421 of the Act, it was incumbent upon the Government to give hearing to the petitioners before an order could be passed against them. According to the petitioners, no opportunity of hearing was at all given to them when the Government set aside the order of the Appeal Committee. It was further contended that the provisions contained in section 403 (6) of the Act clearly lay down that the decision of the Appeal committee shall be final and consequently no reference could be considered by the state Government. Learned Counsel for the petitioners contended that the language of Section 421 of the Act clearly goes to show that it would apply only to resolutions or orders of the Corporation or officers subordinate thereto which have to be carried out by the Corporation or its authorities themselves; but in the present case nothing remained to be carried out by the authorities of the corporation. It is apparent that no reference could be entertained by the State government pertaining to orders passed in connection with the building control. It was also contended that the provisions contained in Sub-section (3) of Section 421 go to show that the Corporation is entitled to make representation in a reference being considered by the State Government and Sub-section (4) of Section 421 clearly lays down that the Government can pass any order only after considering the representation made by the Corporation. It was contended for the petitioner that in view of these provisions contained in Section 421, it would be applicable only to cases where Corporation in discharge of its functions either passes a resolution or decides to do a particular act and the Government, while considering the matter under Section 421, if finds that it is contrary to law, rules or bye-laws, it can suspend the operation of the resolution or order and stop its execution; but the Government could do this only after hearing the Corporation and giving it an opportunity to represent. It was further contended that even if it is found that section 421 of the Act confers jurisdiction on the State Government even in matters like the present one, where it is a third party which is involved and is expected to do something in accordance with the orders of the Corporation authorities, still the State Government before passing an order against such party is expected to give it an opportunity of hearing. According to the petitioners, this being a matter pertaining to the rights of the citizens the State Government exercising powers under Section 421 of the Act is expected to follow the principles of natural justice; and consequently as the petitioners were not given any opportunity to represent or an opportunity of hearing, the order passed by the state Government could not be maintained.