Madhya Pradesh High Court
Kumari Gangadeep vs The State Of Madhya Pradesh on 14 November, 2011
WP 18919.11
Writ Petition No. 18919 of 2011
14-11-2011
Shri Praveen Chourasiya, learned counsel for the
petitioner.
This petition under Article 227 of the Constitution of
India is directed against a show cause notice issued by
respondent No. 2-Municipal Corporation, Jabalpur, in
exercise of powers under section 307 (2) of the Municipal Corporation Act, 1956, whereby the petitioner has been called upon to produce the sanctioned map and the document pertaining to the title over the land earmarked for a park.
Since the petition is directed against a show cause notice and the show cause notice is not questioned on the ground of competency of the respondent in issuing the same, the petition is premature. In Special Director v. Mohd. Ghulam Ghouse : AIR 2004 SC 1467, it was observed by their Lordships that :
"5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non- est in the eye of law for absolute want of WP 18919.11 jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine and the writ petitioner should invariably be directed in respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, granted."
Even otherwise sub-section (5) of Section 307 provides for :
"(5) Nothing in this section shall affect the right of the Corporation or any other person to apply to the District Court for an injunction for the removal or alteration of any building on the ground that it contravenes any provisions of this Act or the byelaws made thereunder, but if the building is one in respect of which plans have been deposited and the plans WP 18919.11 have been passed by the Commissioner, or notice that they have been rejected has not been given within the prescribed period after the deposit thereof, and if the work has been executed in accordance with the plans, the District Court on granting an injunction shall have power to order the Corporation to pay to the owner of the work such compensation as the District Court thinks just, but before making any such order the District Court cause the Commissioner if nota party to be joined as a party to the proceeding."
The petitioner thus has a remedy to file the civil suit and claim the relief therein.
In view of above the petition fails and is hereby dismissed.
(SANJAY YADAV) JUDGE sc