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Madhya Pradesh High Court · body

2018 DIGILAW 626 (MP)

Bhagwandas v. Nagarpalika Nigam, Ratlam

2018-07-16

J.K.MAHESHWARI

body2018
ORDER 1. Being aggrieved by the notice of demand dated 8.4.2016 issued under section 174 of the M.P.Municipal Corporation Act, 1956 (referred hereinafter as 'the Act'), this petition has been preferred. 2. The background of the action taken against the petitioners is relevant whereunder the Writ Petition No. 1778/2015 was filed and was decided as per order dated 13.5.2015. This Court found that the construction which is being carried out by the petitioners is as per the sanctioned map of the Corporation on a land purchased by them. Resultantly, the Court quashed the order dated 25.9.2013 (Annx.P-12) and the order dated 16.1.2015 (Annx.P-15) in the said writ petition. The Court further directed that the construction activity be carried out by the petitioners in consonance with the building permission granted in their favour. Thereafter a notice(Annx.P-4) dated 18.3.2016 was issued contending that as per the notice dated 3.8.2015 some construction of the building on the MOS land has been raised. The description of illegal construction has not been mentioned in the said notice. It was replied denying all facts stating that no construction on MOS land is raised . Thereafter the notice of demand under section 174 has been issued which is assailed in this petition interalia contending that prior to issuing the demand, procedure as described in section 173 of the Act has not been followed, therefore the notice is bad in law, however it may be ordered to be quashed. 3. Respondent-Corporation has filed their reply interalia contending that notice has rightly been issued to the petitioner on account of raising the illegal construction on the MOS land which was demolished by use of JCB and other equipments, therefore the recovery to expenses incurred by Corporation as per the provisions of the Act has rightly been ordered. In alternative, it is urged that the said recovery does not come within the purview of sections 173 and 174 of the Act, therefore the argument advanced by the petitioners is of no avail to them, therefore the petition may be dismissed. 4. After hearing learned counsel appearing on behalf of both the parties, the reflection of the dispute can be taken from the findings recorded by this Court in the previous petition vide order dated 13.5.2015 in W.P. No.1778/2015. 4. After hearing learned counsel appearing on behalf of both the parties, the reflection of the dispute can be taken from the findings recorded by this Court in the previous petition vide order dated 13.5.2015 in W.P. No.1778/2015. The relevant part of the order is reproduced hereinbelow : “Heard learned counsel for the parties as also the intervenors at length and perused the record. The matter is being disposed of at the admission stage itself with the consent of the parties. It is an admitted fact, that house No. 180 has been bought by the petitioners through registered sale deed in the year 2006. It is not in dispute that they are title holder of the property in question. It is also not in dispute that a map was sanctioned by the Municipal Corporation, Ratlam in respect of grant of building permission and the petitioners started constructing a building after the permission was granted in the year 2012. It has been categorically stated by the learned counsel for the respondent - Municipal Corporation, Ratlam that the petitioners have not constructed even an inch in contravention to the sanctioned layout. Not only this, the letter of the Commissioner, Municipal Corporation, Ratlam makes it very clear that the petitioners were carrying out construction in consonance with the sanctioned layout. It is really unfortunate that on account of some dispute with the intervenors, the building permission has been suspended even though there is no violation of the building permission. The building permission has been granted under the provisions of the M. P. Municipal Corporation Act, 1956 read with Bhumi Vikas Rules and once the permission has been granted by the Municipal Corporation, Ratlam until and unless, the construction is raised contrary to the building permission the same could not have been revoked in the manner and method it has been done. Resultantly, this Court is of the considered opinion that the order date 25.9.13 (Annexure P-12) and order date 16.1.2015 (Annexure P-15) are hereby set aside. However, it is made clear that the petitioner shall not damage the property of the intervenor while carrying out the construction activity and shall construct the building strictly in consonance with the building permission granted to him by the Municipal Corporation, Ratlam in the year 2012. With the aforesaid, the Writ Petition stands disposed of.” 5. However, it is made clear that the petitioner shall not damage the property of the intervenor while carrying out the construction activity and shall construct the building strictly in consonance with the building permission granted to him by the Municipal Corporation, Ratlam in the year 2012. With the aforesaid, the Writ Petition stands disposed of.” 5. On perusal of the aforesaid, it is luculent that the construction which was being carried out by the petitioners was found strictly in accordance with the permission granted by the Corporation and the said fact was not disputed during course of hearing. Thus the objection of intervenor was rejected. Thereafter along with Annx.P-4 notice impugned under sections 302 and 307 attached with the petition, was issued. The said notice do not specify, on which land of the MOS the construction has been carried out specifying the area of illegal construction making sketch by way of map of it. It is to observe here that without giving specifications thereof, such notice is vague and if any action is taken on the basis of said notice, it cannot be recognised valid under the law. Simultaneously if some construction has been raised on the land of the MOS, it is required to be examined by the Corporation specifying the limit of the said construction and it is exceeding from the compoundable limit but without taking such step, their action cannot be recognised valid under the law. In addition to the aforesaid, the notice under challenge (Annx.P-1) issued on 8.4.2016 is under section 174 of the Act. The said notice may be issued in furtherance to payment of bill raised by the Corporation not paid by the person by whom it is payable. In this regard the provisions of sections 173 and 174 are relevant which are reproduced hereinder : S.173 : Presentation of bill for taxes and other demands (1) when any amount declared by or under the provisions of this Act to be recoverable in the manner provided in this chapter, or payable on account of any tax imposed within the limits of the city shall have become due, the Commissioner shall with the least practicable delay cause to be presented to any person liable for the payment thereof a bill for the sum claimed as due. (2) Contents of bill – Every such bill shall specify - (a) the period for which, and (b) the property, occupation or thing in respect of which the sum is claimed, and shall also give notice of - (i) the liability incurred in default of payment, and (ii) the time within which an objection may be preferred as against such claim. 174. If bill not paid within 15 days, notice of demand to issue - (1) If the sum, for which a bill is presented as aforesaid is not paid and no objection has been preferred within 15 days from the presentation of the bill, the Commissioner may serve upon the person to whom such bill has been presented a notice of demand in the (form prescribed by byelaws). (2) For every notice of demand, a fee shall be charged at the rate specified in the byelaws and shall be payable by the said person, and the fee shall be included in the costs of recovery. 6. On perusal thereto, it is clear that if any amount declared under the provisions of this Act to be recoverable, it may be recovered in the manner as provided in chapter XII of the Act. The manner is provided in subsection 2 of section 173, to issue the concerned bill specifying the details thereof and shall issue a notice with respect to the liability incurred in default of payment. Thereafter if the sum for which the bill is presented has not been paid, then the notice under section 174 may be issued to recover the said amount. In the present case either in the reply filed by the Corporation or before this Court during hearing, nothing has been brought to the notice that prior to taking action under section 174 of the Act, the procedure as prescribed in chapter XII section 173(2) and 174 have been followed. In absence thereto, issuance of notice under section 174 is not permissible. In this regard the judgment of this Court in the matter of Dhanya Kumar Dharamdas Agrawal v. State of M.P., [ 1999(2) MPLJ 56 ], is relevant. 7. So far as the arguments advanced with respect of recovery as per section 307(3) of the Act is concerned, it would cover within the purview of the amount due as specified in section 173 of the Act. 7. So far as the arguments advanced with respect of recovery as per section 307(3) of the Act is concerned, it would cover within the purview of the amount due as specified in section 173 of the Act. However the recovery of the said amount may be made on demand by the Corporation observing the procedure prescribed. In view of foregoing, in my considered opinion, notice issued by the Corporation deserves to be and is hereby quashed. 8. Accordingly this petition succeeds and is hereby allowed. The notice dated 8.4.2016(Annx.P-1) is quashed. In the facts, parties to bear their own cost.