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2015 DIGILAW 341 (MP)

Mahendra Kumar Goyal v. State of M. P.

2015-03-25

SUJOY PAUL

body2015
ORDER 1. Since similar issue is involved in these matters, matters were analogously heard on the joint request of the parties. Facts are taken from Writ Petition No.842/2015. In this petition, the petitioner has called in question the legality, validity and propriety of the order dated 2.2.2015 (Annexure P-1) whereby the Chief Municipal Officer, Nagar Palika Parishad, Shivpuri passed the order dated 2.2.2015 and imposed the penalty on the petitioner under section 187(A) of the Municipalities Act, 1961. Shri Raja Sharma in both the cases assailed this order on the ground that as per the said provision it is only President-in- Council which has competence to pass such orders. Attention is drawn on proviso to section 187(A)(d). He also relied on 2014(1) MPLJ 225 (Anil Kumar Jain v. State of M.P. and others). He further submits that the construction in question is a non-residential construction and, therefore, compounding can be made only with the permission of President-in-Council. 2. Prayer is opposed by Shri Praveen Newaskar, learned Deputy Government Advocate and Shri J. D. Suryavanshi, learned Advocate for respondent No.2. 3. The attention is drawn on the certificate/permission (Annexure P-3). By this document petitioner was given permission to raise construction. It is shown that this permission was given for residential accommodation. 4. Shri Raja Sharma, by taking this Court to the reply/objections to the ad-interim relief, submits that the construction was made on commercial building. Averments of objection are relied upon to submit that construction was made on non-residential building. Thus, the singular objection is on the competency of CMO in passing the impugned order. 5. I have heard the learned counsel for the parties and perused the record. 6. The petitioner was put to notice before issuing the impugned order. In reply to the show cause notice, the petitioner did not raise objection about competency of CMO. Shri Raja Sharma was unable to show any averment from the reply to the show cause notice or from the Writ Petition that the construction so made was non-residential. He intended to take assistance from the rejoinder. He submits that this is a pure question of law. I do not see any merit in this contention. The nature of construction will decide the question of competence/jurisdiction. The nature of construction is essentially a question of fact on the basis of which competency of the authority can be decided. He intended to take assistance from the rejoinder. He submits that this is a pure question of law. I do not see any merit in this contention. The nature of construction will decide the question of competence/jurisdiction. The nature of construction is essentially a question of fact on the basis of which competency of the authority can be decided. The petitioner has not raised this objection either in the reply to show cause notice or in the writ petition. 7. In (2006)9 SCC 90 (Ashok Lanka v. Rishi Dikshit and others), the apex Court opined that no new plea ordinarily could have been permitted in the rejoinder without the leave of the Court. In (1981)2 SCC 484 (Miss Arti Sapru and others v. State of J and K and others), the apex Court opined that, “the allegations have for the most part been made for the first time in the rejoinder affidavit and there has been no reasonable opportunity to the respondents to reply to them. Allegations in the writ petition are extremely vague and sketchy and can form no basis for a finding in favour of the petitioner.” 8. This is settled in law that petitioner must prove his case on the basis of pleadings and proof submitted by him. The vagueness of reply or weakness of defence cannot be a reason to succeed. Thus, there is no proper foundation establishing that the construction in question is non-residential construction. Sections 307 and 308 provides a statutory alternative remedy. The petitioner can avail that remedy and put forth his case with accuracy and precision. In Anil Kumar Jain (supra), the nature of construction was not in dispute. In that factual backdrop, this Court decided the matter and entertained writ petition, despite availability of proper remedy. 9. In the present case, the nature of construction is yet to be determined. The appellate authorities are best suited to decide this aspect. Accordingly, I am not inclined to entertain this petition. The petitioner is relegated to avail the said remedy. If the said remedy is opted within 15 days from today, the competent authority shall decide the appeal in accordance with law, expeditiously. It will be open to the petitioner to file interim application along with the said proceedings to be filed before the next higher authority. 10. Petitions are disposed of without expressing any view on the merits of the case. It will be open to the petitioner to file interim application along with the said proceedings to be filed before the next higher authority. 10. Petitions are disposed of without expressing any view on the merits of the case. Raja Sharma for petitioner; Praveen Newaskar, Deputy Government Advocate for respondent No.1/State; J. D. Suryavanshi for respondent No.2.