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Madhya Pradesh High Court · body

2010 DIGILAW 595 (MP)

Shyam Kishore Malviya v. State of M. P.

2010-06-12

SANJAY YADAV

body2010
ORDER Sanjay Yadav, J. 1. Shri A. D. Mishra, learned counsel for the petitioner. Shri B. N. Misra, learned Government Advocate for the State of M.P. Shri Rahul Rawat, learned counsel for the respondent Nos. 2 to 4. 2. Aggrieved of the action of the respondents 2 to 4 in dispossessing the petitioner from the Municipal shop bearing No. A/17 situated at Bus stand Multai District Betul, the petitioner, the sub-lessee in the occupation of said shop has filed this petition under Article 226/227 of the Constitution of India. 3. Undisputed facts are that the Shop No. A/17 situated at Bus stand Multai District Betul belongs to Nagar Panchayat, Multai and was auction leased in favour of one Madan Mohan Shivhare who let out the same in favour of the petitioner for an alleged premium sum of Rs. 80,000/- on 5-7-1995. The petitioner thereon established a tailoring shop. The said Madan Mohan died on 25-5-1997. 4. That, after the death of Madan Mohan some dispute arose between the petitioner and the legal heirs of late Madan Mohan and the Nagar Panchayat. As after the death of Madan Mohan, the petitioner was threatened a forceful eviction and non-recognition of the petitioner as lessee. This action led to filing of civil suit for declaration and permanent injunction by the petitioner. 5. The suit forming subject-matter of CS 14A/97 was decreed on 31-1-2004 in favour of the petitioner and against the legal heirs of Madan Mohan and the Nagar Panchayat Multai in the following terms:- 6. The judgment and decree dt. 31-1-2004 was affirmed in appeal preferred by the legal heirs of late Madan Mohan was dismissed on 29-3-2005. No appeal was preferred by Nagar Panchayat, Multai which allowed the same to attain finality. 7. The Nagar Panchayat in turn taking cue from the judgment decree which stated that an action in accordance with law can be taken, has taken action against the petitioner purportedly in exercise of powers under section 167 of the M. P. Municipality Act, 1961 (hereinafter shall be referred to as 'the Act of 1961'). 8. 7. The Nagar Panchayat in turn taking cue from the judgment decree which stated that an action in accordance with law can be taken, has taken action against the petitioner purportedly in exercise of powers under section 167 of the M. P. Municipality Act, 1961 (hereinafter shall be referred to as 'the Act of 1961'). 8. The petitioner calling in question the said action by the respondents has to submit that before taking any action under section 167 of the Act of 1961, incumbent it is upon the respondent Nagar Panchayat, Multai to have first resorted to the provisions contained under section 164 and unless an opportunity was afforded to the petitioner regarding the payment of dues, no action whatsoever could have been taken by the respondents in depriving the petitioner of his lawful possession of the shop in question. It is urged that the action taken by the respondents Nagar Panchayat, Multai is erroneous in law and deserves to be quashed because the petitioner has been deprived of his lawful possession of the shop in question. 9. The respondent Nos. 2 to 4 on their turn has maintained the stand that the action against the petitioner of depriving him of the possession of the shop in question is in purported exercise of powers under section 167 of the Act of 1961. It is however, urged that before taking action under section 167, the petitioner was called upon to vacate the premises by a notice dt. 21-2-2007 within seven days failing which the eviction of the petitioner would be at his cost and consequences. It is contended on behalf of the respondent Nos. 2 to 4 that since the petitioner did not vacate the premises, an action was taken against him by putting lock at the said shop and taking possession thereof. It is contended that the action cannot be found fault with as the same is in consonance with the statutory provisions. 10. After considering the rival submissions, the issue which crops up for consideration is as to whether the respondent Nos. 2 to 4 are justified in their action in depriving the petitioner of the possession of Shop No. A/17. 11. Admittedly, as noted above, decree by competent Court of jurisdiction was passed in favour of the petitioner in respect of the occupation of the shop in question. 2 to 4 are justified in their action in depriving the petitioner of the possession of Shop No. A/17. 11. Admittedly, as noted above, decree by competent Court of jurisdiction was passed in favour of the petitioner in respect of the occupation of the shop in question. In a civil suit, wherein the respondent Nagar Panchayat was also a party. The said decree was affirmed in appeal, preferred by the legal heirs of late Madan Mohan and the Nagar Panchayat did not challenge the same and allowed it to attain finality. 12. True, it is that liberty was given to the Nagar Panchayat, Multai to take action in accordance with law and as has been adverted to by the respondent Nos. 2 to 4 that the petitioner has been evicted in purported exercise of powers under section 167. 13. Section 167 of the Act of 1961 stipulates :- 167. In what cases warrant may issue. - (1) If a person on whom a notice of demand has been served under sub-section (3) of section 164 does not, within 15 days from the service of such notice pay the sum demanded in the notice such sum with all cost of recovery may be recovered under a warrant in the form prescribed by rules or to the like effect signed by the Chief Municipal Officer :- (I) by distress and sale of movable property belonging to such person; or (II) by attachment and sale of the immovable property belonging to him : Provided that, where any precautionary or other measures in respect of any such property have been taken by the State Government for the recovery of any sum claimed by it, no proceedings shall be taken or continued under this chapter, in respect of such property until the State Government's claim has been paid off. To whom warrant should be addressed. To whom warrant should be addressed. - (2) The warrant shall be addressed - (a) where the property is in the Municipality, to an officer of the Municipality; (b) where the property is in another Municipality, to the Chief Municipal Officer of such Municipality; (c) where the property is within the limits of a Municipal Corporation, to the Municipal Commissioner of such Corporation; (d) where the property is in a Cantonment, to the Chief Officer of the Cantonment; (e) where the property is not within the limits of a Corporation, Municipality or Cantonment, to a Government Officer not below the rank of a Tahsildar : Provided that such Chief Municipal Officer, Municipal Commissioner, Chief Officer or Government Officer may endorse such warrant to a subordinate officer. Power of entry under special Order. - (3) It shall be lawful for any officer to whom a warrant issued under sub-section (1) is addressed if the warrant contains a special order authorising him in this behalf, but not otherwise, to break open at any time between sunrise and sunset, any outer or inner door or a window of the building in order to make distress directed in the warrant, if he has a reasonable ground for believing that such building contains property which is liable to seizure under the warrant, and if after notifying his authority and purpose and duly demanding admittance, he cannot otherwise obtain admittance : Provided that such officer shall not enter or break upon the door of any apartment appropriated to the use of women until he has given not less than three hours notice of his intention and had given such women an opportunity to withdraw. Warrant how to be executed. Warrant how to be executed. - (4) It shall also be lawful for such officer to distraint, wherever it may be found, any movable property or attach any immovable property of the person therein named as defaulter subject to the following conditions, exceptions and exemptions, namely:- (a) the following property shall not be distrained :- (i) the necessary wearing apparel and bedding of the defaulter, his wife and children, and utensils used for cooking and drinking; (ii) the tools of artisans; (iii) when the defaulter is an agriculturist, his implements of husbandry, seed-grain, and such cattle as may be necessary to enable him to earn his livelihood; (iv) book of account; (v) religious books and idols of worship; (b) the distress shall not be excessive, that is to say, the property distrained shall be as nearly as possible equal in value to the amount recoverable under the warrant, and if any articles have been distrained which; in the opinion of the Chief Municipal Officer or of the persons to whom the warrant was addressed should not have been so distrained, they shall forthwith be returned to the person from whom it was distrained; (c) the officer shall on distraining or attaching the property forthwith make an inventory thereof, and give to the person in possession thereof at the time of distress or attachment, a written notice in the form prescribed by rules that the said property will be sold as shall be specified in such notice; (d) when the property is immovable, - (i) the attachment shall be made by an order prohibiting the defaulter from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge; (ii) the order shall be proclaimed at some place on or adjacent to the property by beat of drum or other customary mode, and a copy of the order shall be fixed on a conspicuous part of the property and upon a conspicuous part of the Municipal office and also when the property is land paying revenue to the State Government, in the office of the Tahsildar of the tahsil in which the land is situate; (e) any transfer of, or charge on, the property attached or of any interest therein made without the written permission of the Council shall be void as against all claims of the Council enforceable under the attachment. 14. 14. A bare perusal of the aforesaid provisions would reveal that the action under section 167 would lie against the person on whom a notice of demand has been served under sub-section (3) of section 164, which provides for : 164. Presentation of bills for taxes, rent and other claims. - ............................................................................................. (3) If the person to whom a bill has been presented as aforesaid does not, within 15 days from the presentation thereof either - (a) pay the sum claimed as due in the bill; or (b) show cause to the satisfaction of the Chief Municipal Officer or of such officer as the Council may appoint in this behalf, why he should not pay the same; or (c) prefer an appeal in accordance with the provisions of section 172 against the claims; the Chief Municipal Officer may cause to be served upon the person liable for the payment of the said sum a notice of demand in the form prescribed by rules. 15. Thus, for an action under section 167, a notice under sub-section (3) of section 164 is a condition precedent. 16. In the case at hand, the respondent Nos. 2 to 4 who have filed the return are totally silent in respect of the action being taken as is contemplated under sub-section (3) of section 164 of the Act of 1961, instead the respondents have relied on notice dt. 21-2-2007 (Annexure R-2) which infact, is a direction to the petitioner to vacate the shop in question within seven days. 17. In the considered opinion of this Court, since, there is non-compliance of the provisions contained under sub-section (3) of section 164 and thus, a denial of an opportunity to the petitioner to satisfy the Chief Municipal Officer in respect of the demand if any, qua, the shop in question, the action under section 167 of the Act of 1961 suffers from vice of illegality and arbitrariness. 18. The necessary corollary whereof, that the action taken by the respondent Nos. 2 to 4 stands vitiated and the same cannot be given the stamp of approval. 19. In the result, petition succeeds, the action of the respondent Nos. 2 to 4 in putting a lock over the shop bearing No. A/17 situated at bus stand, Multai by respondent Nos. 2 to 4 is declared to be a nullity. 2 to 4 stands vitiated and the same cannot be given the stamp of approval. 19. In the result, petition succeeds, the action of the respondent Nos. 2 to 4 in putting a lock over the shop bearing No. A/17 situated at bus stand, Multai by respondent Nos. 2 to 4 is declared to be a nullity. The possession of said shop be handed over to the petitioner forthwith. The respondent Nos. 2 to 4, however, are at liberty to proceed, if the cause so demands strictly under the provisions contained under sections 164 and 167 of the Act of 1961. 20. The petition is allowed to the extent above. The cost of the petition be borne by the respondent Nos. 2 to 4, which is hereby quantified at Rs. 5,000/-.