Madhya Pradesh High Court
Smt. Kalawati vs Dhruv Yadav on 21 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:1327
1 CR-56-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 21st OF JANUARY, 2025
CIVIL REVISION No. 56 of 2025
SMT. KALAWATI AND OTHERS
Versus
DHRUV YADAV AND OTHERS
Appearance:
Shri Rohit Bansal - Advocate for the applicants.
ORDER
This Civil Revision under Section 115 of CPC has been filed against the
order dated 06.01.2025 passed by X District Judge, Gwalior in MJC No.267/2021
by which an application filed by applicant under Order 7 Rule 11 of CPC has
been rejected.
2. It is submitted by counsel for applicants that respondent No.1 has filed
an application under Section 307 (5) of Madhya Pradesh Municipal Corporation
Act alleging that applicants have raised and are raising construction contrary to
sanctioned layout. In spite of objections raised by neighbors, applicants did not
stop the construction. Even complaint was made to Municipal Corporation, but
no action was taken and therefore, the application under Section 307 (5) of
Madhya Pradesh Municipal Corporation Act was filed alleging that applicants are
left with no other option but to take recourse to Section 307 (5) of Madhya
Pradesh Municipal Corporation Act.
3. The applicants filed an application under Order 7 Rule 11 CPC alleging
that respondent No.1 had not given notice to the Municipal Corporation under
Signature Not Verified
Signed by: RASHID KHAN
Signing time: 1/23/2025
5:40:36 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:1327
2 CR-56-2025
Section 401 of Municipal Corporation Act which is mandatory in nature and
therefore, application filed by respondent No.1 against applicants under Section
307 (5) of Madhya Pradesh Municipal Corporation Act is not maintainable. Said
application was rejected by the impugned order. Challenging the impugned order,
it is submitted that the Trial Court has committed a material illegality by rejecting
the aforesaid contention made by applicants.
4. It is further submitted that respondent No.1 has failed to mention as to
when the cause of action arose, therefore, in absence of cause of action,
application under Section 307 (5) of Madhya Pradesh Municipal Corporation Act
is not maintainable.
5. Heard the learned counsel for applicants.
Whether non-issuance of notice under Section 401 of Madhya Pradesh
Municipal Corporation Act would amount to violation of mandatory provision or
not ?
6 . Section 401 of Madhya Pradesh Municipal Corporation Act reads as
under:-
“401. Notice, limitation and tender of amends in suit against
Corporation, etc.-( 1 ) No suit shall be instituted against the
Corporation, the Mayor-in-Council, or any Corporation officer or
servant, or any person acting under the direction of the
Corporation, the Mayor-in-Council or any municipal officer or
servant, in respect of any act done or purporting to have been
done in pursuance or execution or intended execution of this Act,
or in respect of any alleged neglect or default in the execution of
this Act or any rule or bye-law made thereunder until the
expiration of one month next after notice in writing has been
delivered or left at the chief Corporation office or at the residence
of such officer, servant, or person standing with adequate
particulars :-
(a) the cause of action;
(b) the name and residence of the intending plaintiff and of his
advocate, pleader or agent, if any, for the purpose of the suit; and
(c) the relief which he claims.
(2) Every such suit shall be commenced within six months next
Signature Not Verified
Signed by: RASHID KHAN
Signing time: 1/23/2025
5:40:36 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:13273 CR-56-2025
after the accrual of the cause of action, and the plaint therein shall
contain a statement that a notice has been delivered or left as
required by sub-section (1).
(3) If the Corporation or any person to whom any notice is given
under sub-section (1) has tendered sufficient amends to the
plaintiff before the suit is instituted, the suit shall be dismissed.
(4) If the defendant in any such suit is the Commissioner or any
other Corporation officer or servant, payment of any sum or part
thereof payable by him in or in consequence of the suit may, with
the sanction of the Mayor-in-Council be made from the Municipal
Fund.”
7 . The very purpose of issuing notice to the authority/State Government
before institution of suit is to provide an opportunity to the Authorities/State
Government to redress the grievance of the parties. If the facts of case are
considered, then it is clear that allegations are that it is the applicants who have
raised and are raising the construction contrary to the provisions of Madhya
Pradesh Municipal Corporation Act. If application under Section 307 (5) of the
Madhya Pradesh Municipal Corporation Act is allowed, then it will be for the
applicants to remove their encroachment. The Municipal Corporation would
come into picture only if applicants fails to remove their encroachment in spite of
the order passed by competent Court. Thus, the basic grievance of respondent
No.1 is against the applicants and not against respondent No.2. Furthermore, in
application filed under Section 307 (5) of Madhya Pradesh Municipal Corporation
Act, respondent No.1 has specifically mentioned that complaints were made to the
respondent No.2 with regard to the encroachment which was and which is being
done by applicants, but no action was taken by respondent No.2.
8 . Under these circumstances, the information given to the respondent
No.2 in the form of complaint can also be treated as a notice under Section 401 of
Madhya Pradesh Municipal Corporation Act because if respondent No.2 has
failed to take action on the complaint made by respondent No.1, then it can be
inferred that sufficient opportunity was given to the respondent No.2 to redress
Signature Not Verified
Signed by: RASHID KHAN
Signing time: 1/23/2025
5:40:36 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:1327
4 CR-56-2025
the grievance of respondent No.1. Furthermore, as no substantive relief has been
claimed against the respondent No.2 and even if the application under Section 307
(5) of the Madhya Pradesh Municipal Corporation Act is decided, primarily order
would not be against respondent No.2, but it would be against applicants,
therefore, it is held that respondent No.2 is merely a formal party being executing
agency under the provisions of Madhya Pradesh Municipal Corporation Act.
9 . From plain reading of Section 401 of Madhya Pradesh Municipal
Corporation Act, it is clear that a suit cannot be instituted against the
Corporation, Mayor in council or Corporation Officer or Servant or any person
acting under the direction of Corporation, the Mayor in Council or any Municipal
Officer or Servant or in respect of any act done or purporting to have been done in
pursuance or execution or intended execution of this Act. Application under
section 307 (5) of Madhya Pradesh Municipal Corporation Act cannot be treated
as a regular suit. It is an application for injunction as well as for removal of
encroachment or the part of building which has been erected or re-erected in
contravention of any town planning scheme. Section 94 of CPC provides for
supplementary proceedings. By no stretch of imagination, application under
Section 307 (5) of Madhya Pradesh Municipal Corporation Act can be treated as a
civil suit and at the most, it can be treated as supplementary proceedings.
Therefore, even otherwise, provision of Section 401 of Madhya Pradesh
Municipal Corporation Act would not be applicable.
Whether application filed under Section 307(5) of Madhya Pradesh
Municipal Corporation Act discloses cause of action or not ?
10. It is submitted by counsel for applicants that respondent No.1 has not
disclosed the date, from which the construction of building was initiated in
Signature Not Verified
Signed by: RASHID KHAN
Signing time: 1/23/2025
5:40:36 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:1327
5 CR-56-2025
contravention of provisions of Madhya Pradesh Municipal Corporation Act and
therefore, it is clear that no cause of action has been disclosed warranting
rejection of plaint under Order 7 Rule 11 of CPC.
11. Counsel for applicants was directed to point out as to whether there is
any provision for limitation for filing an application under Section 307 (5) of
Madhya Pradesh Municipal Corporation Act or not? It was fairly conceded by
counsel for applicants that there is no provision for filing an application under
Section 307 (5) of Madhya Pradesh Municipal Corporation Act. Counsel for
applicants also failed to point out any provision of law to show that if building
remains constructed for a particular length of period, then same would be treated
as constructed as per the provisions of Madhya Pradesh Municipal Corporation
Act. When no limitation is provided, then it is not necessary for respondent No.1
to give the minute details like the date of beginning of the constructions, time etc..
12. No other argument was advanced by counsel for applicants.
13. Considering the totality of facts and circumstances of the case, this
Court is considered opinion that Trial Court did not commit any mistake by
rejecting the application filed by applicant under Order 7 Rule 11 of CPC.
14. Exconsequntia, the order dated 06.01.2025 passed by X District Judge,
Gwalior in MJC No.267/2021 is hereby affirmed.
15. It appears that application is pending since 2021, as the same was filed
in some-times in the month of July 2021. More than three and half years have
passed and still it appears that application is at the initial stage. Although in the
light of judgment passed by Supreme Court in the case of High Court Bar
Association Allahabad Vs State of UP, reported in (2024) 6 SCC 267 ( decided on
29th of February, 2024 in Criminal Appeal No.3589/2023) , the Constitutional
Court should not issue a direction to the Trial Courts to expedite the hearing, but
Signature Not Verified
Signed by: RASHID KHAN
Signing time: 1/23/2025
5:40:36 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:1327
6 CR-56-2025
under exceptional circumstances, such a direction can be given. As already
pointed out, the application is still at the initial even after the expiry of three and
half years. Whether building has been constructed contrary to provisions of
Madhya Pradesh Municipal Corporation Act or not, is yet to be decided by the
Trial Court, but long pendency of such litigation is detrimental to the interest of
society. Therefore, this Court is of considered opinion that an exceptional
circumstance has been pointed and warranting direction to the Trial Court to
expedite the hearing of the case.
16. Accordingly, it is directed that Trial Court shall positively decide the
matter within a period of eight months from today. The Trial Court shall ensure
that no unnecessary adjournments are granted to either of the parties.
17. The Office is directed to immediately send a copy of this order to the
Trial Court for necessary information and compliance.
18. The revision fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
Rashid
Signature Not Verified
Signed by: RASHID KHAN
Signing time: 1/23/2025
5:40:36 PM
[ad_1]
Source link