Municipal Council Mandsaur vs Mukutbiharilal

V.R. Nevaskar, J.—This is a petition under Article 226 of the Constitution.

The circumstances leading to this petition are as follows:-In the town of Mandsaur there is a house bearing Municipal No. 1/561 situated in Balaganj. This house belonged to one Shyamadevi who sold it to opponent No. 1 Mukutbiharilal under a registered sale deed dated 6-2-1939 for a consideration of Rs. 499. About 10 months later she executed another sale deed for an open piece of land on the western side of the portion already sold measuring 20"x57". After the initial purchase dated 6 2-1939 opponent No. 1 Mukutbiharilal applied on 11-2-1939 for permission for its reconstruction and submitted along with it the copy of the sale-deed as well as the existing and the proposed construction. Permission in accordance with his prayer was granted subject to certain conditions and the opponent No. 1 reconstructed the house Several years later i. e. on 28-11 1953 he made another application to the Municipality for permission to build upon the land which he had acquired under the second sale-deed. The Municipality considered that portion of the property as Municipal land and called upon opponent No. 1 to produce evidence in support of his alleged title and informed him that the application for permission to build would be considered after it is satisfied on the question of title. Opponent No. 1 accordingly produced evidence before the Municipal Committee who examined the same and passed a resolution on 21-8-1957 holding that the land in question was Municipal land. The result was that the application of opponent No. 1 for sanction to build was rejected. There was an appeal to the Collector against this order of the Municipality refusing the opponent. No. 1 permission to build The Collector proceeded to examine the question of title and came to the conclusion that the title was with opponent No. 1, He therefore directed the quashing of the order, of the Municipality whereby it had refused permission to build to opponent No. 1 and sent back the matter for consideration in accordance with the existing rules. The present petition is directed against that decision.

It is contended by Mr. S. D. Sanghi for the Municipality that the Collector had no jurisdiction to go into the question of title and to cancel the order passed by the Municipality refusing permission to the opponent No. 1 to effect reconstruction. The learned counsel contended that the application for permission to build was submitted by the opponent No. 1 on 28-11-1953 when the Kanoon Municipality Riyasat Gwalior, Samvat 1993 was in force. u/s 144(1) proviso of the Act there is a specific prohibition for the "Collector to entertain appeals where question of title is involved and it is this prohibition which Will continue to operate in spite of the fact that the ultimate order of refusal was passed when the Madhya Bharat Municipalities Act, No. 1 of 1954, had come into force. The order passed by the Collector allowing the appeal on a finding on the question of title was it is contended without jurisdiction; and ought to be quashed.

Mr. K. B. Saxena, who appeared for opponent No. 1, on the other hand contended that where the question of title was involved in the decision or order of the Municipality there could be no appeal under the Gwalior Law. But since the proceeding had not resulted in any final decision the power of appeal will be governed by the provisions contained in the new Act viz. the Madhya Bharat Municipalities Act, No. 1 of 1954. The learned counsel referred to Section 191 of the Madhya Bharat Municipalities Act, No. 1 of 1954, and contended that unlike the former Gwalior Municipalities Act there is no specific prohibition regarding entertainment of appeal on the question of title. He therefore contended that the action of the Collector in going into the question of title cannot be said to be without jurisdiction.

The contention of Mr. Saxena that the Collector''s order is not without Jurisdiction by reason of the provisions contained in Section 191 of the Madhya Bharat Municipalities Act cannot be accepted for two different reasons. Firstly, it is well established that right of appeal is a vested right and it vests in a party on the date of initiation of the proceeding out of which the appeal arises. In the present case the proceeding was initiated by means of an application dated 11-2-1939 when the Gwalior Municipalities Act was in force. The right of appeal to the Collector will therefore be governed by the provisions contained in the Gwalior Act. The provisions of Section 191 of the Madhya Bharat Municipalities Act will not be relevant for the purpose of determining this right. Secondly even under the Madhya Bharat Municipalities Act it is not competent for the Collector to go into the question of title. The provisions regarding construction or reconstruction of any building is contained in Section 112 of the Madhya Bharat Municipalities Act. Sub section (2) of this Section indicate that the Municipal Council, on being approached by an intending builder, who has satisfied the necessary conditions under sub-section (1), may either grant permission to erect, alter, add or reconstruct the building according to the plan and information furnished or may impose in writing such conditions as to level, drainage, sanitation, materials or to the dimensions and cubical contents of rooms, doors, windows and apertures for ventilation or to the number of storeys to be erected or with reference to the location of the building in relation to any street existing or projected or the purpose for which the building is to be used. It is thus clear that when the Municipal Council is called upon to exercise jurisdiction u/s 112 no question regarding enquiry as to title could arise. When therefore the matter is taker to the Collector in appeal under Sec. 191 the question regarding title can in no way enter into consideration at the time of hearing of the appeal. Any prohibition therefore similar to the one u/s 144 of the Gwalior Municipalities Act would be unnecessary. It is therefore no argument to say that since there is no specific prohibition in Section 191 of the Madhya Bharat Municipalities Act for entertaining appeal on the question of title similar to the one contained in Section 144 of the Gwalior Municipalities Act the Collector is competent to go into the question of title.

It is next contended by Mr. K. B. Saxena that even assuming that the Collector had jurisdiction to go into the question of title the Municipal Council as well had no jurisdiction to refuse permission to build when it is moved for a permission to reconstruction u/s 98 of the Gawlior Municipalities Act.

Having regard to the broad terms of Section 98 of the Gwalior Act and the specific prohibition regarding entertainment of appeals on the question of title in Section 144 of the Gwalior Municipalities Act we are unable to accept the contention of the learned counsel that the Municipal Council had no jurisdiction to refuse permission on the ground that the property belonged to the Municipality.

The petitioner''s contention, therefore, that the order of the Collector determining the question of title in an appeal preferred against the decision of the Municipal Council is without jurisdiction deserves to be upheld.

The petition is, therefore, allowed and the order, of the Collector passed in appeal dated 27-6-1960 upholding the title of opponent No. 1 and cancelling the order of refusal of the Municipal Council to grant permission to him to reconstruct is hereby quashed.

The petitioner is entitled to get the costs of this petition from opponent No. 1 Mukutbiharilal who shall bear his own. Counsel''s fee shall be taxed at Rs. 50/-.

Krishnan J.

I agree.