MUNICIPAL COUNCIL, NEEMUCH Vs. UDAIRAM

JUDGEMENT

(1.) L . This application by the Municipal Council under Article 226 of the Constitution of India is to quash the order of the Magistrate First Class. Neemuch, dated 19 -4 -1974, dismissing the application of the petitioner under section 165 (1) of the M.P. Municipalities Act, 1961, (hereinafter referred to as the Act)

(2.) THIS writ petition raises an important, though short, question of law, whether the Magistrate is competent or has jurisdiction to go into the validity and correctness of the demand raised by the Municipality under section 164 of the Act in an application under section 165 (1) for recovery of the amount. In order to understand the scope of the question, it is necessary to refer briefly the material facts, which are not in dispute and which lie in a short compass that gave rise to the question.

(3.) AS the Municipality did not get any payment from the respondent, an application under section 165 (1) read with section 313 (2) of the Act was filed in the Court of the Magistrate First Class, Neemuch on 25 -3 -1970 for the recovery of a total sum of Rs. 2604.44 P. and interest by issuing a distress warrant. The respondent appeared before the Magistrate and contested the claim of the petitioner contending inter alia that he ceased to be a tenant of the petitioner Municipality from 1 -4 -1964 and, therefore, no amount could be recovered from him by the Municipality by having resort to sections 164 and 165 of the Act and in any event the claimed recovery is not permissible in respect of the rent prior to six years. On the admission of the petitioner's counsel, it was held by the learned Magistrate that the rent due from the tenant for the period prior to 1 -4 -1964 has become barred by limitation under section 176 of the Act and cannot be recovered. With regard to the claim for the subsequent period, it was found that the applicant cannot recover any rent from the respondent from 1 -4 -1964 to 31 -3 -1970 as the Municipality has terminated all the rights of the respondent on the land in question. Hence this writ petition.