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Govind Prasad Agrawal Vs. Administrator of the City of Jabalpur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 28 of 1968
Judge
Reported inAIR1971MP216; 1971MPLJ215
ActsMadhya Pradesh Municipal Corporation Act, 1956 - Sections 294(1) and 295(3)
AppellantGovind Prasad Agrawal
RespondentAdministrator of the City of Jabalpur and ors.
Appellant AdvocateM. Adhikari, ;J.S. Verma and ;B.L. Patel, Advs.
Respondent AdvocateR.S. Dabir, Adv.
DispositionPetition dismissed
Excerpt:
.....these two conditions are satisfied and no order is passed either sanctioning or rejecting such an application, the application will be deemed to have been sanctioned. 11. regarding clause (d) in the lease-deed the contention of the learned counsel for the petitioner was that on parts of this very plot, which is a large one, the corporation had previously sanctioned erection of non-residential buildings like a saw-mill and motor repairing garage, and having once permitted the use of the land for non-residential purposes the effect of that clause had come to an end and the petitioner had a right to make any construction to be used for any purpose he considered proper. 13. the order rejecting the application as well as the notices for removal of the constructions etc......was that on parts of this very plot, which is a large one, the corporation had previously sanctioned erection of non-residential buildings like a saw-mill and motor repairing garage, and having once permitted the use of the land for non-residential purposes the effect of that clause had come to an end and the petitioner had a right to make any construction to be used for any purpose he considered proper. we are unable to agree with this contention. the condition in the lease-deed is quite clear, prohibiting the lessee 'at any time' to use the said premises for any other purpose. therefore, every time the petitioner wanted to use it for a purpose other than a private dwelling house he was bound to obtain previous sanction of the corporation. admittedly no such sanction has been.....
Judgment:

Bishambhar Dayal, C.J.

1. The petitioner Shri Govind Prasad Aaarwal has filed this petition under Articles 226 and 227 of the Constitution for quashing the order of the respondents disallowing his application for approval of the site for erection of a cinema building and the notices dated 21st November 1967 and 8th December 1967 issued under Section 302 of the M. P. Municipal Corporation Act for stopping further constructions and demolishing the constructions already made.

2. The allegation of the petitioner on which he has asked for these reliefs is that he is the owner of Plot No. 810, Sheet No. 250, Napier Town, Bhortal, Jabalpur. He, intending to construct a cinema house on that plot, applied on 30th December 1965 to the respondents for approval of the site and for sanctioning the plan of the construction. No orders were passed on his application within 30 days as required by Section 295 (3) of the Act and, consequently, assuming that he must be deemed to have been permitted to make the constructions he proceeded with the construction. However, on 22nd February 1966, when more than 30 days had passed, an order rejecting his application seems to have been passed and was served on him. As a matter of abundant precaution he filed an appeal against this order on 16th may 1966. But while this appeal was pending, notices dated 21st November 1967 and 8th December 1967 were successively served on him asking him to demolish the constructions already made and not to proceed with further construction.

3. It may be noted here that, according to the petitioner, after 30 days had passed from the date of his application and no orders were received rejecting the same, he had started constructions and spent more than a lac of rupees by the time the notice for demolition was received. He prayed for stay but the same was not granted. Consequently this petition was filed.

4. On behalf of the respondents the contention is that the petition is based on misrepresentation of facts. The petitioner is not the owner of the plot as alleged by him in paragraph 1 of the petition. On the other hand, the plot vested in the Corporation and the Corporation had granted a lease of this plot to the pre-decessor-in-title of the petitioner on 28th March 1938 for 30 years starting from 23rd January 1923. In the lease deed, among others, there was a specific condition as follows:--

'(d) The lessee shall not at any time use the said premises or permit the same to be used for any purpose other than that of a private dwelling house without the previous consent in writing of the lessor or of such person as he may appoint for the purpose.'

The contention of the respondents is that in view of the fact that the property belonged to the Corporation, the petitioner was not entitled to make any construction of a commercial nature without the previous sanction of the Corporation as lessor. No application was made by the petitioner to the Corporation as lessor for permitting the use of the land for other than dwelling purpose and consequently he had no right to make the constructions on that land. It is further contended that the petitioner's contentions relating to his application for erection not having been rejected within 30 days are not relevant. It was also contended that in any case the section regarding deemed sanction (Section 295 (3)) has no application to the land which vests in the Corporation and, therefore, the question of deemed sanction does not arise. The constructions made by the petitioner were therefore unauthorised and the Corporation was fully justified in issuing notices for demolition etc.

5. After hearing learned counsel for the parties we have come to the conclusion that there is no force in this petition and it must be dismissed with costs. Our reasons for coming to the conclusion are as follows.

6. The application which the petitioner gave on 30th December 1965 merely stated that he wanted to construct a cinema hall on that particular plot. He did not disclose whether he was a lessee or the owner of that plot. In the prayer he merely stated 'For your early approval please'. There was no prayer for permission to build. This application is alleged to have been made under Section 294 of the M. P. Municipal Corporation Act. Sub-sections (1) of this section contemplates two applications (a) An application in writing for approval of the site with a site plan of the land and in the case of land which is the property of the Government or of the Corporation a certified copy of the documents authorising him to occupy the land.....a and (b) an application in writing for permission to build together with ground plans, elevation and section of the building and a specification of the work to be done. Sub-section (4) makes it clear that the application as required under Clause (b) will not be necessary until approval is obtained on the application required to be made under Clause (a). This is, therefore, quite clear that two applications are required by the section. It may be assumed that in a proper wav both the prayers may be included in the same application. But then the requirements of both the applications and clear prayers for both the purposes must be stated in the application.

7. In the present case, the petitioner-did not comply with the requirements of Clause (a) inasmuch as he did not disclose that he was not the owner of the plot but it belonged to the Corporation, nor did he attach with it a certified copy of the lease-deed under which he had a right to occupy, with the result that the application was not a proper application under Clause (a). Moreover, it was likely to mislead the officer concerned to treat this as an application for approval of a site on the footing that the property belonged to the petitioner himself. The contention of the learned counsel for the petitioner that the officers of the Corporation must have known full well that the plot belongs to the Corporation, as the lease-deed and the relevant entries existed in the Corporation Office, does not appeal to us. A specific provision in the Act has been made for the purpose of drawing pointed attention of the officer concerned to this fact before he gives sanction and this not having been done, it cannot be assumed that the officer had the necessary knowledge and, therefore, it was not necessary to comply with the required procedure. When a procedure is prescribed for doing a thing, it must either be done in that way or not done at all.

8. It may also be noted that in this application the only relief asked for was 'approval'. There was no prayer for granting permission to build and since under Clause (b) of Section 294(1) a separate application for permission to build is necessary, this application could only be treated by the officers concerned as an application under Clause (a) of that section. That being so, there was no question of any limitation within which to approve the site. Section 295, which prescribes the limitation, deals with an application under Clause (b) for permission to build.

9. We may also mention that under Sub-section (3) of Section 295 the relevant provision is as follows:

'.....If the Commissioner within thirty days of the receipt from any person of a valid notice of such person's intention to erect or re-erect a building ..... neglects or omits to pass orders sanctioning or refusing to sanction such erection or re-erection, such erection or re-erection shall, unless the land on which it is proposed to erect or re-erect such building belongs to or vests in the Corporation, be deemed to have been sanctioned.....'

On the plain language of the above subsection, there must be a valid application for erection or re-erection of a building and the land should not belong to or vest in the Government or the Corporation. If these two conditions are satisfied and no order is passed either sanctioning or rejecting such an application, the application will be deemed to have been sanctioned. As noted above, in this case there was no application under Clause (b) for erection of a building. The application under Clause (a) for approval of the site was also defective, and admittedly the plot vests in the Corporation. Consequently, the question for deemed sanction does not arise.

10. Learned counsel appearing fop the petitioner contended that the phrase 'vests in the Corporation' must be read to mean 'is in the possession of the Corporation', and the possession being of the petitioner the exception does not apply. We are unable to agree with this contention. The phrase Vests in the Corporation' has been used along with the phrase 'belongs to'. Thus the whole phrase 'belongs to or vests in the Corporation' refers to ownership and not to possession. Admittedly the plot belongs to and also vests in the Corporation. The action of the petitioner, therefore, in starting construction without express sanction was wholly illegal and unjustified.

11. Regarding Clause (d) in the lease-deed the contention of the learned counsel for the petitioner was that on parts of this very plot, which is a large one, the Corporation had previously sanctioned erection of non-residential buildings like a saw-mill and motor repairing garage, and having once permitted the use of the land for non-residential purposes the effect of that clause had come to an end and the petitioner had a right to make any construction to be used for any purpose he considered proper. We are unable to agree with this contention. The condition in the lease-deed is quite clear, prohibiting the lessee 'at any time' to use the said premises for any other purpose. Therefore, every time the petitioner wanted to use it for a purpose other than a private dwelling house he was bound to obtain previous sanction of the Corporation. Admittedly no such sanction has been obtained. Consequently the petitioner had no right to start constructions before obtaining such previous sanction.

12. Lastly it was contended by the learned counsel for the petitioner that the refusal to sanction in Annexure 'D' stated 'Unsuitable locality and drawing faulty' which carries no sense as it does not disclose what the unsuitability in the locality was and what were the defects in the drawing. Learned counsel for the respondents has brought to our notice several factors, which have also been noted by the appellate authority in its judgment rejecting the petitioner's appeal, why the plot is unsuitable for building a cinema house. Those factors were challenged by the petitioner. But we need not so into those questions of fact as we think that in the present case neither there was an application for erection of a building nor was previous sanction obtained according to the terms of the lease, and the petitioner had, therefore, no right to start constructions.

13. The order rejecting the application as well as the notices for removal of the constructions etc. challenged by the petitioner cannot be quashed. The petition is dismissed with costs. Lawyers' fee Rs. 200/-, if certified. After deduction of costs from the amount of security the balance, if any shall be refunded to the petitioner.


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