Madhya Pradesh High Court
Ahsan Khan vs Nagar Palik Nigam Gwalior Thr. on 25 August, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:19261
1 CR-78-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 25th OF AUGUST, 2025
CIVIL REVISION No. 78 of 2015
AHSAN KHAN AND OTHERS
Versus
NAGAR PALIK NIGAM GWALIOR THR. AND OTHERS
Appearance:
Shri Rajeev Shrivastava - Advocate for applicants.
None for respondents No.1, 3 to 8.
Shri Dilip Awasthi - Government Advocate for respondent
No.2/State.
ORDER
This Civil Revision under Section 115 of CPC has been filed against
the order dated 01-10-2015 passed by Ninth Additional District Judge,
Gwalior, in Case No. 65 of 2014 MJC, by which the application filed by the
applicants under Section 307(5) of the Municipal Corporation Act has been
rejected under Order 7 Rule 11 CPC on the ground that the application was
not filed after 30 days from issuing a notice to the Municipal Corporation
under Section 401 of the Municipal Corporation Act.
2. Challenging the order passed by the court below, it is submitted by
counsel for the applicants that the applicants have filed an application under
Section 307(5) of the Municipal Corporation Act against the respondents
No.3 to 8. It is submitted that an application under Order 7 Rule 11 CPC was
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filed by the respondents No.3 to 8 on the ground that the applicants had not
waited for 30 days after issuing notice to the Municipal Corporation under
Section 401 of the Municipal Corporation Act, therefore the application filed
under Section 307(5) of the Municipal Corporation Act was not
maintainable. By the impugned order, the said application has been allowed.
3. Challenging the order passed by the court below, it is submitted by
counsel for the applicants that the primary relief claimed by applicants is
against the respondents No.3 to 8 and not against the Municipal Corporation.
Even otherwise, the case in hand is duly covered by the order dated
21.01.2025 passed by this Court in the case of Smt. Kalawati and others Vs.
Dhruv Yadav and Others, in Civil Revision No. 56/2025 .
4. None appears for the respondents 1, 3 to 8 though served.
5. This Court in the case of Smt. Kalawati (supra) has held as under:
"This Civil Revision under Section 115 of CPC has been filed against
the order dated 06.01.2025 passed by X District Judge, Gwalior in
MJC No.267/2021 by which an application filed by applicant under
Order 7 Rule 11 of CPC has been rejected.
2. It is submitted by counsel for applicants that respondent No.1 has
filed an application under Section 307 (5) of Madhya Pradesh
Municipal Corporation Act alleging that applicants have raised and are
raising construction contrary to sanctioned layout. In spite of
objections raised by neighbors, applicants did not stop the
construction. Even complaint was made to Municipal Corporation, but
no action was taken and therefore, the application under Section 307
(5) of Madhya Pradesh Municipal Corporation Act was filed alleging
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that applicants are left with no other option but to take recourse to
Section 307 (5) of Madhya Pradesh Municipal Corporation Act.
3. The applicants filed an application under Order 7 Rule 11 CPC
alleging that respondent No.1 had not given notice to the Municipal
Corporation under Section 401 of Municipal Corporation Act which is
mandatory in nature and therefore, application filed by respondent
No.1 against applicants under Section 307 (5) of Madhya Pradesh
Municipal Corporation Act is not maintainable. Said application was
rejected by the impugned order. Challenging the impugned order, it is
submitted that the Trial Court has committed a material illegality by
rejecting the aforesaid contention made by applicants.
4. It is further submitted that respondent No.1 has failed to mention
as to when the cause of action arose, therefore, in absence of cause of
action, application under Section 307 (5) of Madhya Pradesh
Municipal Corporation Act is not maintainable.
5. Heard the learned counsel for applicants.
Whether non-issuance of notice under Section 401 of Madhya
Pradesh Municipal Corporation Act would amount to violation of
mandatory provision or not ?
6. Section 401 of Madhya Pradesh Municipal Corporation Act reads
as under:-
"401. Notice, limitation and tender of amends in suit
against Corporation, etc.-(1) No suit shall be instituted
against the Corporation, the Mayor-in-Council, or any
Corporation officer or servant, or any person acting
under the direction of the Corporation, the Mayor-in-
Council or any municipal officer or servant, in respect
of any act done or purporting to have been done in
pursuance or execution or intended execution of this
Act, or in respect of any alleged neglect or default in
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the execution of this Act or any rule or bye-law made
thereunder until the expiration of one month next after
notice in writing has been delivered or left at the chief
Corporation office or at the residence of such officer,
servant, or person standing with adequate particulars :-
(a) the cause of action;
(b) the name and residence of the intending plaintiff and
of his advocate, pleader or agent, if any, for the purpose
of the suit; and
(c) the relief which he claims.
(2) Every such suit shall be commenced within six
months next after the accrual of the cause of action, and
the plaint therein shall contain a statement that a notice
has been delivered or left as required by sub-section (1).
(3) If the Corporation or any person to whom any notice
is given under sub-section (1) has tendered sufficient
amends to the plaintiff before the suit is instituted, the
suit shall be dismissed.
( 4 ) If the defendant in any such suit is the
Commissioner or any other Corporation officer or
servant, payment of any sum or part thereof payable by
him in or in consequence of the suit may, with the
sanction of the Mayor-in-Council be made from the
Municipal Fund."
7. The very purpose of issuing notice to the authority/State
Government before institution of suit is to provide an opportunity to
the Authorities/State Government to redress the grievance of the
parties. If the facts of case are considered, then it is clear that
allegations are that it is the applicants who have raised and are raising
the construction contrary to the provisions of Madhya Pradesh
Municipal Corporation Act. If application under Section 307 (5) of the
Madhya Pradesh Municipal Corporation Act is allowed, then it will be
for the applicants to remove their encroachment. The Municipal
Corporation would come into picture only if applicants fails to remove
their encroachment in spite of the order passed by competent Court.
Thus, the basic grievance of respondent No.1 is against the applicants
and not against respondent No.2. Furthermore, in application filed
under Section 307 (5) of Madhya Pradesh Municipal Corporation Act,
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respondent No.1 has specifically mentioned that complaints were
made to the respondent No.2 with regard to the encroachment which
was and which is being done by applicants, but no action was taken by
respondent No.2.
8. Under these circumstances, the information given to the
respondent No.2 in the form of complaint can also be treated as a
notice under Section 401 of Madhya Pradesh Municipal Corporation
Act because if respondent No.2 has failed to take action on the
complaint made by respondent No.1, then it can be inferred that
sufficient opportunity was given to the respondent No.2 to redress the
grievance of respondent No.1. Furthermore, as no substantive relief
has been claimed against the respondent No.2 and even if the
application under Section 307 (5) of the Madhya Pradesh Municipal
Corporation Act is decided, primarily order would not be against
respondent No.2, but it would be against applicants, therefore, it is
held that respondent No.2 is merely a formal party being executing
agency under the provisions of Madhya Pradesh Municipal
Corporation Act.
9. From plain reading of Section 401 of Madhya Pradesh Municipal
Corporation Act, it is clear that a suit cannot be instituted against the
Corporation, Mayor in council or Corporation Officer or Servant or
any person acting under the direction of Corporation, the Mayor in
Council or any Municipal Officer or Servant or in respect of any act
done or purporting to have been done in pursuance or execution or
intended execution of this Act. Application under section 307 (5) of
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Madhya Pradesh Municipal Corporation Act cannot be treated as a
regular suit. It is an application for injunction as well as for removal of
encroachment or the part of building which has been erected or re-
erected in contravention of any town planning scheme. Section 94 of
CPC provides for supplementary proceedings. By no stretch of
imagination, application under Section 307 (5) of Madhya Pradesh
Municipal Corporation Act can be treated as a civil suit and at the
most, it can be treated as supplementary proceedings. Therefore, even
otherwise, provision of Section 401 of Madhya Pradesh Municipal
Corporation Act would not be applicable.
Whether application filed under Section 307(5) of Madhya Pradesh
Municipal Corporation Act discloses cause of action or not ?
10. It is submitted by counsel for applicants that respondent No.1
has not disclosed the date, from which the construction of building
was initiated in contravention of provisions of Madhya Pradesh
Municipal Corporation Act and therefore, it is clear that no cause of
action has been disclosed warranting rejection of plaint under Order 7
Rule 11 of CPC.
11. Counsel for applicants was directed to point out as to whether
there is any provision for limitation for filing an application under
Section 307 (5) of Madhya Pradesh Municipal Corporation Act or not?
It was fairly conceded by counsel for applicants that there is no
provision for filing an application under Section 307 (5) of Madhya
Pradesh Municipal Corporation Act. Counsel for applicants also failed
to point out any provision of law to show that if building remains
constructed for a particular length of period, then same would be
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treated as constructed as per the provisions of Madhya Pradesh
Municipal Corporation Act. When no limitation is provided, then it is
not necessary for respondent No.1 to give the minute details like the
date of beginning of the constructions, time etc..
12. No other argument was advanced by counsel for applicants.
13. Considering the totality of facts and circumstances of the case,
this Court is considered opinion that Trial Court did not commit any
mistake by rejecting the application filed by applicant under Order 7
Rule 11 of CPC.
14. Exconsequntia, the order dated 06.01.2025 passed by X District
Judge, Gwalior in MJC No.267/2021 is hereby affirmed.
15. It appears that application is pending since 2021, as the same
was filed in some-times in the month of July 2021. More than three
and half years have passed and still it appears that application is at the
initial stage. Although in the light of judgment passed by Supreme
Court in the case of High Court Bar Association Allahabad Vs State of
UP, reported in (2024) 6 SCC 267 ( decided on 29th of February, 2024
in Criminal Appeal No.3589/2023) , the Constitutional Court should
not issue a direction to the Trial Courts to expedite the hearing, but
under exceptional circumstances, such a direction can be given. As
already pointed out, the application is still at the initial even after the
expiry of three and half years. Whether building has been constructed
contrary to provisions of Madhya Pradesh Municipal Corporation Act
or not, is yet to be decided by the Trial Court, but long pendency of
such litigation is detrimental to the interest of society. Therefore, this
Court is of considered opinion that an exceptional circumstance has
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been pointed and warranting direction to the Trial Court to expedite
the hearing of the case.
16. Accordingly, it is directed that Trial Court shall positively
decide the matter within a period of eight months from today. The
Trial Court shall ensure that no unnecessary adjournments are granted
to either of the parties.
17. The Office is directed to immediately send a copy of this order
to the Trial Court for necessary information and compliance.
18. The revision fails and is hereby dismissed."
6. If the facts and circumstances of the case are considered, then it is
clear that the primary relief sought by the applicants is against the private
respondents No.3 to 8. It is the allegation of the applicants that respondents
No.3 to 8 have carried out construction contrary to the provisions of the
Municipal Corporation Act and in spite of the complaint made by the
applicants, no action has been taken by the Municipal Corporation. Thus, the
only grievance of the applicants against the Municipal Corporation is with
regard to non-taking of action against the respondents No.3 to 8, but the
primary contention of the applicants is that the respondents No.3 to 8 have
carried out construction contrary to the provisions of the Municipal
Corporation Act and thus the said construction is liable to be removed.
7. Under these circumstances, this Court is of considered opinion that
since the primary relief which was sought by the applicants is against the
respondents No.3 to 8, therefore, even if the applicants did not wait for 30
days to expire after giving notice under Section 401 of the Municipal
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Corporation Act, still the same would not make the application not
maintainable.
8. Accordingly, the order dated 1-10-2015 passed by Ninth Additional
District Judge, Gwalior, in Case No. 65/2014 MJC is hereby set aside. The
matter is remanded back to the trial court to decide the application filed
under Section 307(5) of the Municipal Corporation Act on merits.
9. Since none has appeared for the respondents No.3 to 8, therefore the
trial court is directed to issue fresh notice to the respondents No.3 to 8 for
their appearance.
10. With aforesaid observations, the Civil Revision is allowed.
(G. S. AHLUWALIA)
JUDGE
Aman
