1. This is a petition under Article 226 of the Constitution praying that the declaration made by the Municipal Board, Allahabad, by the notification dated 2nd November 1955 published in the local newspapers on 4th November 1955, and that the order of the Administrator dated 1st October 1955 be quashed.
2. Briefly the facts necessray for the disposal of the present petition are that there is premies known as Municipal No. 79, Nakhaskoaa Allahabad which is popularly known as Mandi Ali Sajiad Ganj alias Badh ki Mandi situate in Mohalla Nakhaskona. The petitioners claim to be the owner of a major portion of this Mandi. On the 4th July 1955, a notification was issued by the Municipal Board, Allahabad that the Board intended to declare the portion of this Mandi over which the public had a right to pass and which was a street within the meaning of the Municipalities Act, a public street objections were invited and within two months of the date of the notification the petitioners contend that certain objections were filed by them in which besides alleging the fact that the street was properly maintained the petitioners further contended that it was not a street within the meaning of Sub-section 23 of section 2 of the Municipalities Act.
According to the petitioners another objection was also filed by the owners to the extent of annas four of this Ahata. The Administrator by his order dated 1st October 1955 rejected the objection and directed further proceedings for the declaration of this street as public street to be taken. In pursuance of the administrator's decision another notification of the 2nd November 1955 was issued.
3. The contentions raised by the petitioners are three-fold. It is firstly contended by him that his objection was not considered as required under the provisions of section 221 of the Municipalities Act. The next contention raised by the petitioners is that on the admitted facts it is not a street as defined- under section 2 (23) of the Municipalities Act, and lastly, it was contended that the Board did not afford any opportunity to the petitioners to substantiate their objections and to be heard personally before the declaration was made that it was a public street and thus the fundamental rights of the petitioners have been infringed.
4. In the counter affidavit it is stated that the petitioners' objections were considered by the Administrator and he applied his mind to the report of the Inspector and the other representations made and after considering the whole matter rejected the objections of the petitioners. It cannot, therefore, be said that there has been any violation of provisions of section 221 of the Municipalities Act or any principles of natural justice in this case. It was also contended in this connection by the counsel for the Board that the petitioners were not entitled to any personal hearing.
The only grievance that the petitioners have made in para. 20 of the affidavit is to the effect that they were not given any personal hearing to which the petitioners are not entitled and consequently it cannot be said that the Administrator did not apply his mind to the objections raised by the petitioners. As regards the other contentions that it is not a street it is contended that this issue involved the question of fact and the petitioners are not entitled to a decision on a question of fact in a writ.
The proper remedy of the petitioners to challenge the fact that it was not a street is to file a suit. As regards the last contention raised by the petitioners, it was urged that the only power which has been, given to the Board under section 7 after declaring a street to be a public street is to maintain the light in the street and to maintain it and therefore the petitioners have not been deprived of any property. Section 221 of the Municipalities Act provides as follows:
''A board may at any time, and shall, when required by a requisition under Sub-section (3) of section 212, by public notice posted up in street that is not a public street, or in a part of such street, give intimation of its intention to declare the same a public street. Within two months next after 'such notice has been so posted up the owner or owners of such street or such part of a street, or of a greater portion thereof, may lodge objections at the municipal office against the notice. The board shall consider the objections lodged, and, if it rejects them, may, by further public notice posted up in such street or such part, declare the same to be a public street.'
If a requisition has been made as contemplated under section 212 the Board is entitled to issue a notification but in the other cases the Board may take steps to declare the particular street to be a public street. There was no requisition under section 212, therefore, the Board exercised its powers under the first part of section 221 and published a notification that it intended to declare it as a public street. That declaration by itself means assumption of the Board that it is a street and any such assumption is likely to affect the fundamental right of the owner to hold and possess the property and before such decision can be made the opportunity must have been given to the owner to show causeagainst any such action. The argument which may be advanced against this contention is that such an opportunity is provided for under the second part of section 221 where it gives a right to the owner of the street to file objections and it is open to the owner to object to the fact also that it is not a street at all. If it is admitted then obviously the right of the opportunity to consider the objections necessarily implies an obligation to give an opportunity to the owner to be heard and substantiate his case, that it is not a street at all. The order of the Administrator in this case is only in these terms: 'objections rejected. Necessary action to declare the lane as a public lane be taken.' It cannot be said on reading of this order itself that the Administrator ever applied his mind to the objections made by the petitioners and ever considered the question whether it was a street or not. If that is so, then it cannot be said that the objections were considered by the Administrator.
5. In view of my decision on this point it is not necessary to go into the question whether the petitioners have an alternative remedy to file a suit in order to challenge the fact whether it is a street or not.
6. On my findings that the obligation on the administrator to consider the objections has not been discharged the order of the administrator must be set aside and as I have already stated above any assumption on the part of the administrator that it is a street affects the fundamental right of the petitioners and therefore when the objections relate to the fact whether it is a street or not the Administrator is bound to give an opportunity to the petitioners to substantiate their objection. It is true that it is not a judicial proceeding where the evidence should be recorded and provisions of G. P. C. and Evidence Act should be strictly followed but if the decision is likely to affect the fundamental right of the petitioner, he should be given a right to Substantiate his objections. Reference in this connection is made to the case of Rameshwar Prasad v. District Magistrate, AIR 1954 All 144 (A).
7. In the result I, therefore, allow the petition and quash the order of the Administrator dated 1st October 1955 and the notification dated 2nd November 1955. But it is open to the Administrator to consider the objections of the petitioners on merits and thereafter to pass the necessary orders.
8. In the circumstances of the case I make no order as to costs.