S.K. Kulshrestha, J.
1. This appeal assails the order dated 26 9 2006 passed by the learned single Judge in W.P. 1699/ 2006, whereby the learned single, Judge has quashed the demand raised vide notice Ex. P.9 for development charge and in relation to the determination of compounding fee for illegal construction by the respondents petitioner, directions have been issued as under:
In the facts and circumstances of the case, the demand raised by the respondents towards Development Charges, Annexure P-6 and compounding fee Annexure P/19 are quashed with the following directions:
1. That the petitioner shall submit a detailed representation before the respondent No. 2, regarding the nature of land and the actual area of unauthorized construction within a week.
2. If such a representation is submitted by the petitioner, the respondents shall submit the same before President-in-Council, who shall consider the same in accordance with Section 187A of the Act and also in accordance with the Guidelines issued by Collector for the year 2006-2007 and shrill raise the demand accordingly.
3. The respondents shall pass a necessary order within a period of two weeks from the date of receipt of representation after giving opportunity of hearing to the petitioner.
4. The amount already deposited by petitioner in compliance of the interim order passed by this Court shall be adjusted by the respondents.
5. Since the letter of demand Annexure P/6 relating to Development Charges has been quashed, therefore, the bank guarantee deposited by the petitioner in pursuance of the interim order passed by this Court stands discharged.
6. It is made clear that if any further construction is raised, then the same shall be with the permission/sanction of the respondents.
2. The respondent-petitioner, with a view to establish a Farmer Facility Centre and Godown at village Padliya Kala, Tehsil Nagda, District Ujjain. purchased a piece of agricultural land admeasuring 4.164 Hect. It was alleged that after purchasing the land, the petitioner got its name mutated in the revenue record and also obtained the order of diversion from the Sub-Divisional Officer, Nagda for its commercial use. The site plan for the proposed Facility Centre and Godown was approved by the Town and Country Planing Department, Ujjain and thereafter the petitioner applied for building permission in the office of appellant vide application on 24-12-2005. The respondent-petitioner contends that since no objection was commuicated in respect of the plan submitted nor the plans were sanctioned within the period prescribed therefor, on assumption of its deemed permission the building was constructed. However, the appellant, treating the said building to be an illegal construction, proceeded to demand development charges vide Annexure P/9 inn the sum of Rs. 22,40,232 and rejected the representation of the petitioner. It was in these circumstances that the writ petition was filed challenging the demand Annexure P/9.
3. During the pendency of the petition an interim order was passed to the effect that upon depositing Rs. 11,00,000/- within a period of one week, the present appellant shall not interfere with the construction of the FFC as per the building plan submitted by them it was further directed that the remaining amount of the impugned demand shall be secured by the bank guarantee in favour of the appellant (respondents to the petition) which shall be kept alive during pendency of the writ petition.
4. The order was not assailed by the appellant but it was only after the writ petition was decided, the appellant has filed this appeal.
5. Learned Counsel for appellant Shri C.L. Yadav, Senior Advocate, submits that the issue raised before the writ Court was only as regards the development charges demanded vide Annexure P/9 and the demand of compounding charges was not a subject-matter of the petition. In this connection, learned senior counsel has referred to the decision of the Apex Court in the case of B.S.N. Joshi & Sons v. Nair Coal Services Ltd. : AIR2007SC437 to the effect that if a point is not pleaded, the High Court should not allow it to be urged during arguments. He has further invited our attention to the para 5 of the affidavit filed by the Legal Manager Shri T.V. Balaji Rao of the petitioner company in which it has categorically been stated that since the issue of grant of building permission and compounding charges is alien to the present controversy the petitioner shall take the issue separately as per the decision of the respondents. The counsel, therefore, contends that not only law as laid down in M/s. B.S.N. Joshi and Sons (supra), but also by the said statement in the affidavit, the company divested itself of raising the point in the said writ petition. It is in this background that the contention of the senior counsel for appellant is that the learned single Judge should not have allowed this aspect of the matter and ventured to decide the same.
6. Shri S.C. Bagadiya, Senior Advocate, per contra, submits that the writ Court has the power to grant the relief which has not been claimed. In this connection reference has been made to the decision of the Apex Court in the case of Sri Justice S.K. Ray v. State of Orissa : [2003]1SCR434 . He has also invited attention to the decision of Hon'ble Madras High Court in the case of Director of School Education, Madras v. Gnanaraj reported in : AIR1992Mad124 to the effect that the powers of the writ Court are not scuttled down to the exact prayer projected in the petition and subsequent event can also be taken note of.
7. While we agree with the learned Counsel for appellant that in view of the specific averment made in the affidavit to the effect that the company was not raising the issue with regard to the demand of compounding charges till the matter was decided by the municipality the learned single Judge should have left the party at liberty to pursue the legal remedy after decision of the municipality, since the matter has been decided and certain directions have been issued, we are of the view that only on the technical ground that the company at one point of time represented to the Court that it was not raising that issue, the matter need not be jettisoned. Accordingly, we propose to decide the issues on merits.
8. In reference to the demand made vide notice Annexure P/9 for the development charges, the source of authority has been pleaded to be the bye-laws Ex. P/7. We have keenly gone through the bye-laws and we find that the bye-laws make a provision for development charges only from the colonizers and the persons in occupation for making available the basic facilities to the inhabitants, learned Counsel for the appellant has, however, referred to Section 339-A of the M.P. Municipalities Act, 1961 (hereinafter referred to as 'the Act') which by an amendment by M.P. Act No, 29 of 2003, adds builder also along with or colonizer. Section 339-A of the Act reads as under:
339-A. Registration of (Colonizer or Builder), (1) Any person who --
(a) as a colonizer intends to undertake the establishment of a colony in the area of Municipal Council or Nagar Panchayat for the purpose of dividing the land into plots, with or without developing the area, transfers or agrees to transfer gradually or at a time, to persons desirous of settling down on those plots by constructing residential or non-residential or composite accommodation, or
(b) as a builder constructs or cause to be constructed on any land in a municipal area, whether held by him or any other person, independent buildings or a single building with apartments, or converts or causes to be converted an existing building or any part of such building into apartments, for the purpose of transfer by sale or otherwise all or some of them to persons other than members of his family and includes his assignees shall apply to such competent authority as may be appointed by the State Government for the grant of a Registration Certificate.
(2) On receipt of the application for registration under Sub-section (1), (such competent authority, as may be appointed by the State Government) shall, subject to the rules made in this behalf, either issue or refuse to issue the Registration Certificate, within thirty days:
Provided that if (such competent authority, as may be appointed by the State Government) refuse to issue the Registration Certificate, the reasons for refusal shall be intimated to the applicant;
(Provided further that an appeal may be filed by the Appeal Committee constituted under Section 307 within 30 days from the date of rejection of application of registration by the competent authority.)
(3) The State Government shall have power to make rules prescribing the form of application, amount of fees for registration and other terms and conditions, for issue of Registration Certificate.
9. The said provision, as we read, is in relation to a builder who constructs or cause to be constructed on any land in the municipal area, whether held by him or any other person, independent buildings or a single building with apartments or converts or causes to be converted a existing building or any part of such building into apartments, for the purpose of transfer by sale or otherwise all or some of them to persons other than members of his family. Learned Counsel for the respondent-petitioner submits that the building constructed by the petitioner ITC is for its own commercial purpose and not intended to be alienated in the manner contemplated in Clsuse (b) of Section 339-A(1) of the Act. We also find that after the addition of word builder by the amending Act no change has been made in the bye-laws Annexure P/7 to bring the activities of the person such as petitioner, within the net. Under these circumstances we are unable to find any fault with the order in so far as learned single Judge has quashed the notice Annexure P/9 demanding development charges. In relation to demand of development charges, if still there is any provision to justify the demand, the municipality shall be free to proceed in the matter and give notice to the petitioner and decide the matter in accordance with law.
10. Coming to the second question, the demand of compounding charges, the learned single Judge has observed in para 10 of the impugned order that since the facts have come on record by way of moving an application and affidavits and also in pursuance of the order of the learned single Judge (the interim order) the validity of the demand raised by respondent towards compounding fee is also required to be examined. While we feel that the learned single Judge, in view of the specific affidavit that this aspect was not being agitated, should have left the party to proceed in the said matter in accordance with law, since the direction issued by the learned single Judge, reverts the matter to the municipality and its functionaries to take decision with regard to the compounding charges under Section 187-A and the matter is left in the hands of the municipality, we do not consider it fit to quash the same, We may refer to the provisions of Section 187-A regarding compounding of offences of construction of buildings without permission The said provision reads as extracted below:
187-A, Compounding of offences of construction of buildings without permission.- Notwithstanding anything contained in this Act or any other Act, for the time being in force or any rules or bye-laws made thereunder, the offence of constructing buildings without permission or contrary to the permission granted, may be compounded, if-
(a) such contravention does not effect the regular building line; and
(b) the area of unauthorised construction made in the marginal open spaces or in excess of the prescribed Floor Area Ratio does not exceed the per cent of the prescribed floor are ratio:
(c) area notified by the State Government as a hill station or a place of tourist importance or sensitive/fragile from the point of ecology.
(d) area specified for parking of vehicles.
(e) area coming within the Road or area affecting alignment of Public Roads.
(f) area specified for tanks (Talab).
(g) area of construction affecting regular building life.
(Provided that in compounding the cases, fees shall be charged, as under in respect of the area of unauthorised construction on the basis of the rate of sale of land determined by the Collector of stamps for the area concerned:
(a) If the construction relates to a plot of one hundred square meter, ten per cent of the rate of sale, in respect of residential building and fifteen per cent of the rate of sale, in respect of no-residential building:
(b) If he construction relates to a plot of one hundred square meter, but does not exceed two hundred square meter, twenty, percent of rate of sale, in respect of residential building and thirty percent of the rate of sale, in respect of non-residential building;
(c) If the construction relates to a plot of two hundred square meter, but does not exceed three hundred fifty square meter, thirty per cent of the rate of sale, in respect of residential building and forty five per cent of the rate of sale in respect of non-residential building;
(d) If the construction relates to a plot of three hundred square meter, forty per cent of the rate sale, in respect of residential building and sixty per cent of the rate of sale, in respect of non-residential building:
Provided further that the compounding shall be made in case of residential construction by the Chief Municipal Officer and in case of non-residential construction with the permission of President-in-Council:Provided also that nothing contained in this Section shall apply to any person who does not have any right over the building for the land on which the construction has been made).
11. In reference to the Clsuse (d) reproduced above, learned senior counsel for appellant submits that the intention of law is clear that the compounding of offences of the illegal construction is restricted to the plot which are not more than three hundred square meters in area. Though at first glance, the provision does give such an indication, we find that Clsuse (d) does not restrict the power of the municipality to take action in consonance with the provision of Section 187-A of the Act even in relation to the plots having area exceeding three hundred square meters as such a course is not contra-indicated.
12. Where the authority under the municipality or municipal corporation empowered to order demolition has also the power to compound law enjoins such authority with a duty to first consider whether offence of illegal construction can be compounded and it is only when such compounding is not possible, resort to demolition can be taken. We are fortified in our view by the judgment of the Apex Court in the case of Muni Suvrat Swami Jain S.M.P. Sangh v. Arun Nathuram Gaikwad : AIR2007SC38 . Their Lordships have clearly held that mere departure from the authorised plan or putting up of a construction without sanction does not ipso facto and without more necessarily and inevitably justify demolition of the structure. Thus, it is only in such cases which are not amenable to compounding that the drastic step of demolition, if authorised, can be take n,
13. The municipality has issued annexure p/19, demand notice, for payment of Rs. 49,57,439/- Since the learned single Judge despite the fact that it was stated that the petitioner was not challenging this demand in the said petition, has issued directions, we find that the appellant municipality does not suffer any prejudice even if the said directions are complied with and the demand is worked out afresh. The petitioner has already deposited a sum of Rs. 11,00,000/-with the municipality under the interim order dated 27-4-2006, before the exercise for calculating the compounding fees is undertaken, the petitioner company shall deposit a further sum of Rs. 9,00.000/- with the municipality within a fortnight and give an undertaking that if eventually the demand raised by the municipality is more than the amount deposited, the petitioner company shall satisfy the same within three months. In the event it is found that the liability of the petitioner company is less than the amount deposited, the municipality shall refund the balance amount to the company within fifteen days from the crystallisation of the liability. Other directions contained in para 11 of the judgment of the learned single Judge shall remain unaffected subject, however, to the modification hereinabove stated. This appeal is accordingly disposed of with no order as to cost.