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Jagdish Lal Vs. Municipal Board, Bahraich and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 686 of 1970
Judge
Reported inAIR1973All189
ActsUttar Pradesh Municipalities Act, 1916 - Sections 321
AppellantJagdish Lal
RespondentMunicipal Board, Bahraich and ors.
Appellant AdvocateUmesh Chandra Srivastava, Adv.
Respondent AdvocateN. Banerji, Adv.
DispositionPetition allowed
Excerpt:
civil - order of review - section 321 of u.p. municipalities act, 1916 - an order of review must be passed within a period of three months from original order - the order must contain grounds on which revision passed. - - having heard learned counsel for the parties i am of the opinion that this contention is well-founded. the submission, therefore, that under the proviso to section 321 of the act the appellate court, in this case the district magistrate behraich, had no jurisdiction to pass any orders on the application for review dated 17-4-1970 is perfectly sound and valid......district magistrate on 6-12-1969 (vide annexure 2 to the writ petition). after dismissal of the appeal opposite party no. 2 filed a review application purporting to be under section 321 of the u. p. municipalities act (hereinafter called the act) before the district magistrate, bahraich, on 6-12-1969 which was also dismissed by the district magistrate on 17-4-1970 due to the absence of opposite party no. 2 (vide annexure 3 to the writ petition). the same day opposite party no. 2 filed another review application before the same authority and obtained another stay order. this application for review was allowed by the district magistrate by an order dated 3-6-1970 after hearing both the parties and it was directed that the appeal be heard on merits (annexure 4 to the writ petition). the.....
Judgment:
ORDER

Omprakash Trivedi, J.

1. This petition under Article 226 of the Constitution of India has been filed by Jagdish Lal. The contention is that he is owner of a house situate in the city of Bahraich. The house of Opposite Party No. 2 Hari Nath is situate just to the south of this house. After purchase the petitioner claims to have submitted a plan to add two rooms to the house. This plan, it is contended, was sanctioned by the Municipal Board by resolution dated 25-9-1969 (An-nexure 1 to the writ petition). After the resolution opposite party No. 2 filed an appeal on 3-10-1969 before the District Magistrate, Bahraich under section 318 of the U. P. Municipalities Act and also obtained an order staying operation of the resolution dated 25-9-1969. This appeal was dismissed in default of opposite party by the District Magistrate on 6-12-1969 (vide Annexure 2 to the writ petition). After dismissal of the appeal opposite party No. 2 filed a review application purporting to be under section 321 of the U. P. Municipalities Act (hereinafter called the Act) before the District Magistrate, Bahraich, on 6-12-1969 which was also dismissed by the District Magistrate on 17-4-1970 due to the absence of Opposite Party No. 2 (vide Annexure 3 to the writ petition). The same day Opposite Party No. 2 filed another review application before the same authority and obtained another stay order. This application for review was allowed by the District Magistrate by an order dated 3-6-1970 after hearing both the parties and it was directed that the appeal be heard on merits (Annexure 4 to the writ petition). The petitioner feels aggrieved from the order dated 3-6-1970 of which Annexure 4 is a copy, and challenges the same on the ground mainly that the District Magistrate had no jurisdiction to set aside the order of dismissal of the appeal dated 6-12-1969 under the proviso to Section 321 of the Act after expiry of three months and, therefore, questions the validity of the order dated 3-6-1970. It is also urged that the District Magistrate had no jurisdiction to set aside the order of 6-12-1969 and to restore the appeal to its original number. There is also a ground that the resolution of the Municipal Board having been implemented inasmuch as certain constructions had already been made bythe petitioner after expiry of three months from the date of dismissal of the first application for review, the District Magistate had no jurisdiction to hear the appeal filed by Opposite Party No. 2. On these grounds the petitioner prays for a writ of certiorari quashing the order of the District Magistrate dated 3-6-1970 (Annexure 4).

2. The petition has been contested by Opposite Party No. 2 who has filed a counter-affidavit. The opposite party admits that sanction for construction was granted by the Municipal Board to the petitioner but claims that the land on which the Board had permitted construction belonged to Opposite Party No. 2 and the sanction was wrongly granted. It is admitted that the opposite party had filed an appeal before the District Magistrate, Bahraich, against the sanction granted by the Board and the same having been dismissed in default the opposite party moved an application for review. It is further admitted that the review application was also dismissed in default and that a second application for review had been moved which was ultimately allowed by the impugned order.

3. The first and main submission of learned counsel for the petitioner in this case is that the order of the District Magistrate contained in Annexure 4 to the writ petition dated 3-6-1970 was passed without jurisdiction. Having heard learned counsel for the parties I am of the opinion that this contention is well-founded. It is an admitted fact that against the resolution of the Board sanctioning the plan submitted by the petitioner Opposite Party No. 2 filed an appeal before the District Magistrate, Bahraich, under Section 315 of the Act. Admittedly this appeal was dismissed by the District Magistrate in default of Opposite Party on 16-12-1969. The same day the opposite party moved an application for review which was also dismissed in default on 17-4-1970. This was followed by a second application for review of the same date which was allowed by the District Magistrate by order dated 3-6-1970. It is relevant in this connection to reproduce the provision contained in Section 321 of the Act. It reads as follows:

'321. (1) No order or direction referred to in Section 318 shall be questioned in any other manner or by any other authority than is provided therein.

(2) The order of the appellate authority confirming, setting aside or modifying any such order or direction shall be final: Provided that it shall be lawful for the appellate authority, upon application, and after giving notice to the other party, to review any order passed by him in appeal by a further order passed within three months from the date of his original order'.

4. It appears from Section 321 above that the power of review is conferred on the appellate authority under the proviso to Section 321. But there is time-limit forthe exercise of this power, time-limit being three months. It is further clear that this limitation of three months has to be counted 'from the date of his original order' from which it follows that the period of three months for exercise of the power of review must be counted from 6-12-1969 on which the appeal was dismissed in default. Not only was the order on the first application for review (Annexure 3) passed beyond this period of three months counted from the date of dismissal of the appeal in default, but the order on the second application for review was also passed long after this period of limitation. The submission, therefore, that under the proviso to Section 321 of the Act the appellate court, in this case the District Magistrate Behraich, had no jurisdiction to pass any orders on the application for review dated 17-4-1970 is perfectly sound and valid. Apart from this the order contained in Annexure 4 is assailable also on the ground that it cannot be said to have been passed in exercise of power of review although avowedly the second application was treated by the District Magistrate as application for review as distinct from an application for restoration. The power of review on general principles should be exercised when there is some mistake or error apparent on the face of the record or when there is any other sufficient reason. The District Magistrate did not state any sufficient reasons for exercising power. On all considerations I uphold the contention of learned counsel for the petitioner that the District Magistrate had no jurisdiction to set aside the order dated 6-12-1969 after expiry of three months' period i.e., on 3-6-1970. To this one might add that by the impugned order he did not set aside the order passed on the first application for review on 17-4-1970 nor restored the earlier application for review. It is difficult to see how the order on the first application for review remaining intact, another order could be passed on the second application for review. Upon all these considerations the impugned order of the District Magistrate dated 3-6-1970, of which Annexure 4 to the writ petition is a copy, is held illegal and, therefore, liable to be quashed.

5. I allow the petition and set aside the order of the District Magistrate dated 3-6-1970 contained in Annexure 4 to the writ petition. Let certiorari issue accordingly. There shall be no order as to costs.


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