MUNICIPAL CORPORATION BHOPAL Vs. ARVIND JAIN

JUDGEMENT

(1.) THIS is a reference made to this Bench pursuant to an order passed by a learned Single Judge of this Court on 24-1-2006 in W. P. No. 269/1995.

(2.) THE facts leading to the reference are that the respondents received a notice dated 22-10-1991 from the petitioner requiring them to produce the map of their building after making provision in FAR 1:2, coverage 70% and the height upto 40 ft. The respondents filed an appeal against the said notice under section 293 (3) of the Madhya Pradesh Municipal Corporation Act, 1956 (for short 'the Act') before the District Judge, Bhopal. The appeal was entertained and allowed by the Vth Additional Sessions Judge, Bhopal. Aggrieved by the order that was passed by the Vth Addl. District Judge, Bhopal, the petitioner filed a petition under Article 227 of the Constitution of India. When the writ petition was heard by the learned Single Judge of this Court, the petitioner contended before the learned Single Judge that the learned Additional District judge did not have jurisdiction to entertain the appeal under Section 293 (3) of the Act.

(3.) THE learned Single Judge found that there were two Division bench decisions of this Court Moolchand and another Vs. Indore Municipal corporation and another, 1973 MPLJ 596 and Sardarbi Noor Mohammad Vs. Municipal Corporation, Indore and others, 1984 MPLJ 617, in which conflicting opinions had been expressed with regard to the forum in which an appeal could be filed against the orders passed by the Commissioner of the Municipal corporation refusing to grant permission for construction or reconstruction of a building. The learned Single Judge noticed that in Moolchand and another Vs. Indore Municipal Corporation and another (supra), a Division Bench of this court had taken a view that the order of the Commissioner refusing sanction for the galleries was apparently passed under Section 295 of the Act and was thus appealable to the Corporation under sub-section (2) (a) of Section 403 of the act and under sub-section (3) of Section 403 of the Act, the Appeal Committee of the Corporation had jurisdiction to hear the appeal. The learned Single Judge however noticed a later decision in Sardarbi Noor Mohammad Vs. Municipal corporation, Indore and others (supra), in which a Division Bench of this Court had come to the conclusion that Section 293 (3) of the Act provides for an appeal to the District Court by a person aggrieved by the order of the commissioner regarding permission to construct or reconstruct a building.