Mulaimchand Vs. Municipal Committee - Court Judgment

Excerpt:
- - the word 'reasonable' implies intelligent care and deliberation, that is, the choice of a course which reason dictates. ' the supreme court is also of the view that the restriction must be reasonable from the substantive as well as procedural standpoints.orderchaudhary, j.1. this is an application for a writ of certiorari against the municipal committee, katni (respondent no. 1) to quash its resolution no. 2 dated 15-3-1952, refusing sanction to the petitioner to construct a residential house on a plot situated in morrisganj in the town of katni.2. it is necessary to set out a few facts in order to understand the points raised for decision. the petitioner acquired the plot under a registered lease dated 26-3-1942 from maharaj kumar shrilal raghunath singhju deo of deorajnagar. on 26-10-1950 he filed an application accompanied with the plan for sanction to construct a residential building, on 8-11-1950 a number of residents of the locality presented their objections to sanction the proposed construction. the president of the municipal.....

Judgment:
ORDER

Chaudhary, J.

1. This is an application for a writ of certiorari against the Municipal Committee, Katni (respondent No. 1) to quash its resolution No. 2 dated 15-3-1952, refusing sanction to the petitioner to construct a residential house on a plot situated in Morrisganj in the town of Katni.

2. It is necessary to set out a few facts in order to understand the points raised for decision. The petitioner acquired the plot under a registered lease dated 26-3-1942 from Maharaj Kumar Shrilal Raghunath Singhju Deo of Deorajnagar. On 26-10-1950 he filed an application accompanied with the plan for sanction to construct a residential building, On 8-11-1950 a number of residents of the locality presented their objections to sanction the proposed construction. The President of the Municipal Committee rejected the application by an order dated 23-12-1950 which was communicated to the petitioner by Ittalanama (Annexure III) on 8-1-1951. The petitioner then filed an appeal against the said order which was rejected by the Committee on 25-4-1951. The order of the Municipal Committee was, however, set aside by the Additional Deputy Commissioner, Jabalpur, by his order dated 20-6-1951 (Annexure VI) and the Municipal Committee was directed to re-consider the application if a modified plan of the house which would accommodate the interests of the residents of the locality were submitted.

3. The Municipal Committee, after re-considering the matter, reiterated its earlier decision and refused to grant the sanction by its resolution No. 2, dated 15-3-1952 (Annexure VII). The sanction was refused on the ground inter alia that the plot being vacant was a public street which had vested in the Committee and that the construction, if allowed, would obstruct the nistar of the residents of the locality. The Additional Deputy Commissioner, by an order dated 22-8-1952 (Annexure XI) affirmed the order passed by the Municipal Committee after inspecting the spot himself. The Board of Revenue also dismissed the appeal filed by the petitioner, affirming the view that the construction of the proposed building would adversely affect the interestsof the residents of the locality. The petitioner has, therefore, filed this petition.

4. The sanction was refused under Sub-section (2) of Section 99 of the Central Provinces and Berar Municipalities Act, 1922. That sub-section is as follows:--

'The President shall not refuse to sanction the erection or re-erection of a building otherwise than on ground affecting the particular building or in the interests of the residents of the locality, or because adequate provision has not been made for the laying out and the location of streets; or in pursuance of a general scheme sanctioned by the Provincial Government restricting the erection or re-erection of buildings or any class of buildings within specified limits for the prevention of overcrowding or for the location and laying out of streets.'

5. It is contended on behalf of the petitioner that the sub-section in its present form is in contravention of Article 19(6) and has to be struck down as violating the fundamental rights guaranteed by Article 19(1)(g) of the Constitution. Reliance is placed on Chintaman Rao v. State of M. P., 1950 SCR 759: (AIR 1951 SC 118) (A). As against this it is contended on behalf of respondent No. 1 that the provisions of Section 99 of the Municipalities Act are controllable, inasmuch as the Legislature has not left the matter to the caprice of an individual. The order of the President of the Municipal Committee is appealable and is subject to the control of heirarchy of Court tribunals. It is also contended that it is for the Municipal Committee to determine the conditions, for sanction, and as the Municipal Committee has, after detailed inquiry come to the conclusion that the construction of the building proposed by the petitioner would be detrimental to the interests of the residents of the locality and the view having been affirmed by the appellate authority, no interference is called for in the circumstances of the present case.

6. The Supreme Court of India has laid down the principles for determining the reasonableness of a restriction imposed by law upon the exercise of a fundamental right in Chintaman Rao v. State of M. P. (A) (Supra) in the following terms:--

'The phrase 'reasonable restriction', connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of the public. The word 'reasonable' implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in that quality.'

The Supreme Court is also of the view that the restriction must be reasonable from the substantive as well as procedural standpoints. It is not possible to formulate an effective test which would enable the Court to pronounce any particular restriction to be reasonable or unreasonable per se. All the attendant circumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice. Dr. Khare v. State of Delhi, 1950 SCR 519(AIR 1950 SC 211) (B) and Gurubachan v. State of Bombay, 1952 SCR 737: (AIR 1952 SC 221) (C).

7. In my opinion, Sub-section (2) of Section 99 of the C. P. and Berar Municipalities Act, 1922, does not give the executive authority an absolute power to refuse sanction. There is a guidance by the Legislature as to the conditions under which the President of the Municipal Committee can refuse sanction. The sub-section therefore is not in contravention of Article 19(6) of the Constitution. The restrictions imposed are reasonable restrictions.

One of the conditions on which sanction can be refused is that the construction of the building should not be against the interests of the residents of the locality. There is abundant material on record to show that the Municipal Committee, after detailed inquiry and the deliberation, found that the petitioner was never in possession of the plot and the construction of a house on it even according to a changed plan would adversely affect the interests of the residents of the locality and that it was essential that the plot should remain vacant for the sake of health and thoroughfare.

Shri N. K. Shrivastava, Additional Deputy Commissioner, who heard the appeal filed by the petitioner against the order of the Municipal Committee, himself inspected the spot and found that in case a building of any type was allowed to be constructed on the plot it would screen off the residents to the east side of it and ogress and ingress of all surrounding houses would be affected, and that it was the primary duty of the Municipal Committee to take into consideration the sanitation, ventilation and hygenic points in dealing with such cases. This view was affirmed by the Member of the Board of Revenue in Revision No. 17/XIII-3 of 1932, though he did not agree with the finding that the plot fell within the definition of ''Public street'.

8. The provisions of law entitled the Municipal Committee to come to the conclusion it has reached, and it has been affirmed by the appellate and revisional authorities who were all acting within their respective jurisdiction. There is no allegation that the power under Sub-section (2) of Section 99 of the C. P. and Berar Municipalities Act, 1922, has been used mala fide or with a dishonest intention. I, therefore, see no reason to interfere with the order passed by the Municipal Committee on 15-3-1952.

9. It is next urged that as the President of the Municipal Committee did not pass any order within one month after the receipt of the notice as required by Sub-section (2) of Section 98 of the C. P. and Berar Municipalities Act, 1922, he should be deemed to have sanctioned the proposed building absolutely under the proviso to Sub-section (1) of Section 99 of the Act. There is no force in this contention, as the proviso required a further written communication by the petitioner calling the attention of the President to the omission or neglect and when after such communication the omission or neglect continues for a further period of fifteen days then the President ean be deemed to have sanctioned the proposed [building. Tn the instant case the petitioner did not call the attention of the President to the omission by a written communication after the first notice.

10. A point was raised on behalf of respondent No. 1 that there was inordinate delay in filingthe writ-petition and on that ground alone the petition should be dismissed. There is force in this contention, as the order of the Board of Revenue waspassed on 15-4-1955 and the petition was filed on1-2-1956, i.e., nearly 9-1/2 months after the finaldecision. No explanation has been given by thepetitioner for the delay. On the ground of inordinate delay also the petition is liable to be dismissed.

11. The petitioner is not entitled to any ofthe reliefs, and the jurisdiction of this Court under Article 226 of the Constitution is not attracted. Thepetition is dismissed with costs. Counsel's fee Rs. 100.