Madhya Pradesh High Court
Saheb Shri Gurunanak Dev Free ... vs Municipal Council Itarsi on 24 February, 2022
The High Court Of Madhya Pradesh
WP No. 4198 of 2022
(SAHEB SHRI GURUNANAK DEV FREE DISPENSARY SAMITI Vs MUNICIPAL COUNCIL ITARSI)
24-02-2022
Jabalpur, Dated :
Shri Sanjay Agrawal, Advocate for the petitioner.
The petitioner is aggrieved by order dated 16.10.2020 (Annexure-
P/13) passed by respondents, whereby, show cause notice has been
issued to the petitioner as to why lease of the petitioner should not be cancelled.
2. The case of the petitioner is that the petitioner is a society registered under the provisions of the Madhya Pradesh Society Registrikaran Adhiniyam, 1973 and is running various free dispensaries. The respondent council issued an advertisement for auction of Plot no.1/13 and 1/15, area 6125 sq. feet, out of sheet no.5, situated in Sindhi Colony, Ward No.26, Itarsi, District Hoshangabad (M.P.). The petitioner was found to be a successful bidder and, accordingly, lease deed was executed on 30.05.2006 between the parties for a period of 21 years ending on 30.05.2027. According to the petitioner, as per the approved map, multistory building was constructed over the leased land. On 29.12.2014, the respondent council has also granted the permission to the petitioner to make commercial use of the lease premises. Accordingly, the building was constructed. The petitioner states that in accordance with the terms of the lease, taxes etc. are being paid regularly and there is no default to that effect. On 16.10.2020, the respondent council issued the impugned notice.
3. According to the petitioner, without there being any opportunity of hearing, the impugned notice dated 16.10.2020 (Annexure-P/13) has been passed on the premise that the leased land is being used for 2 commercial purpose, which is contrary to the purpose for which the same was granted and the same constitutes a breach of the terms and conditions of the lease, therefore, the lease for the property in question is sought to be cancelled.
4. The learned counsel appearing for the petitioner submits that the aforesaid decision dated 16.10.2020 has not been implemented for a long time. However, recently the Municipal council intends to take coercive steps and therefore, the petitioner has approached this Court. He also submits that he was under impression that in pursuance to the notice dated 16.10.2020, the reply submitted by the petitioner dated 19.10.2020, prima facie, satisfied the Municipal council and, therefore, the action was dropped. He places reliance on the Supreme Court decisions in the matter of K.I. Shephard and others Vs. Union of India and others1, H.L. Trehan and others Vs. Union of India and others2 and the decision of this Court in the matter of Kanta Yogesh Sadarang Vs. State of Madhya Pradesh3.
5. Heard the learned counsel appearing for the petitioner.
6. The perusal of the impugned order shows that the respondent council has taken a decision of cancellation of the lease dated 30.05.2006, without giving any opportunity of hearing to the petitioner. However, while taking such a decision, the council also decides to issue the notice to the petitioner to submit its response. The concluding paragraph of the notice dated 16.10.2013 (Annexure-P/13) is being reproduced as under :-
^^Li"V gS fd mDRk Hkwfe vkoklh;@uflZax gkse iz;kstu gsrq vkids }kjk uhykeh esa yh xbZ FkhA ftldk mYys[k fnukad 30@05@2006 yht&MhM vuqca/k esa jgoklh Hkou gsrq fd;k x;kA ijarq LFky fujh{k.k mijkar ik;k x;k fd vkids }kjk vuqca/k dh 'krksZ dk mYya?ku fd;k x;k o O;olkf;d iz;kstu gsrq mDr 1 (1987) 4 SCC 431.
2 (1989) 1 SCC 764.
3 2019 SCC Online MP 295.3
Hkwfe dk mi;ksx fd;k tk jgk gSA mDr ds laca/k esa fu.kZ; fy;k tkrk gS fd vkidks nh xbZ yht vuqca/k o uhykeh fujLr dh tkrh gSA mDr ds laca/k esa ;fn vkidks viuk i{k j[kuk gS rks 03 fnol ds Hkhrj laiw.kZ nLrkostksa ds lkFk le{k esa vkifRr v|ksgLrkjdrkZ ds lkeus izLrqr djsaA**
7. Taking into consideration the fact that the council has decided to issue the notice to the petitioner, in that case, no final conclusion should have been taken. Taking final decision and simultaneously issuing notice is not the correct approach. If the notice is vitiated by bias and premeditation disposing the mind of the authority issuing the notice, expressly or by necessary implication, thereby giving an impression that whatever is to follow, thereafter, is nothing but hollow formality to the notice that can be said to be not accepted in the eyes of law, and, therefore, on this point, this Court is of the prima facie opinion that the aforesaid notice deserves to be stayed and accordingly, the same is stayed.
Let the notices be issued to respondents on payment of process fees within seven working days.
(PURUSHAINDRA KUMAR KAURAV) JUDGE Nitesh NITESH PANDEY 2022.03.05 13:10:29 +05'30'