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Sheo Ram Vs. Sone Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All912
AppellantSheo Ram
RespondentSone Lal and anr.
Excerpt:
- u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]......prejudicially and he must be aggrieved by it. it is to be noted that the expression used is 'any person aggrieved' and not 'any party aggrieved' as occurs in section 97, civil p.c. if a person is really affected adversely by the order which was passed behind his back we think that he would be entitled to prefer an appeal. in cases of sanction the application is generally made ex parte and no notice is issued by the board calling upon people to object. it therefore seems to us that the legislature could not have intended to deprive the persons, who are adversely affected by the grant of sanction of a right to have their grievances redressed by the district magistrate on appeal. if this were not so then all orders granting sanction by the municipal board would not be open to revision by.....
Judgment:

1. This is an appeal from an order of remand arising out of a suit brought by the plaintiff for a permanent injunction against the defendant-appellant restraining him from interfering with the plaintiff's rights in a certain chabutra constructed by him. The plaintiff applied to the Municipal Board for sanction to construct his chabutra. His application was referred to the Public Works Committee to which power to deal with such applications had been given under Section 112, Municipalities Act. The Committee refused permission, but the order was revised by the Municipal Board which granted the sanction. The plaintiff proceeded to start the construction and then the defendant-appellant Sheo Ram, who apparently had not been aware of the application for sanction and who certainly had not filed any objection protesting against the grant of the sanction, preferred an appeal to the District Magistrate under Section 318 on the ground that the construction would narrow the street and would interfere with the right of way of the public of which he was a member. The Magistrate allowed the appeal and cancelled the sanction. On this the present plaintiff instituted the present suit for injunction. The learned Munsif held that the civil Court could not go behind the order of the District Magistrate passed in appeal and that the suit was not maintainable. He accordingly dismissed the suit without going into the merits. On appeal the lower appellate Court has come to a contrary conclusion and has remanded the case for disposal of the other issues. The main point which arises for consideration in this appeal is whether the defendant-appellant was an 'aggrieved person' within the meaning of Section 318, Municipalities Act, so as to be entitled to prefer an appeal to the District Magistrate. On behalf of the respondent it is urged that only that person can appeal who was a party to the proceedings and who had been aggrieved by the order passed against him. Having regard to the provisions of other sections mentioned in Section 318 we do not think that it can be said that the aggrieved person must of necessity have been a party to the order appealed against. It seems to be quite sufficient that the order must affect him prejudicially and he must be aggrieved by it. It is to be noted that the expression used is 'any person aggrieved' and not 'any party aggrieved' as occurs in Section 97, Civil P.C. If a person is really affected adversely by the order which was passed behind his back we think that he would be entitled to prefer an appeal. In cases of sanction the application is generally made ex parte and no notice is issued by the Board calling upon people to object. It therefore seems to us that the legislature could not have intended to deprive the persons, who are adversely affected by the grant of sanction of a right to have their grievances redressed by the District Magistrate on appeal. If this were not so then all orders granting sanction by the Municipal Board would not be open to revision by the District Magistrate at all, because the Municipal Board itself has granted the sanction and the order is passed in favour of the party who alone was a party to the proceeding.

2. We are of opinion that the view taken by the appellate Court that the appellant was not an aggrieved person and he was not entitled to prefer an appeal is not correct.

3. We do not think that it is necessary to decide whether the rights of the defendant were actually affected by the sanction or whether his rights were not in any way infringed. The District Magistrate considers that he was an aggrieved person and that the order affected him adversely and we think that his order or direction made under Section 318, is final and cannot be questioned by a civil Court. This is expressly provided in Section 321(1). We are accordingly of opinion that the view taken by the first Court is right.

4. The lower appellate Court has taken another ground which in our opinion is untenable. It has considered that the order passed by the Municipal Board was an order under Section 112(3) and not under Section 118 at all. It has accordingly thought Section 318 has no application whatsoever. We are unable to accept this view. Section 112 deals with the delegation of powers by the Board and authorizes the Committee to deal with such applications, those orders being subject to the right of appeal to or revision by the Board itself. But the order granting or refusing sanction by the Municipal Board is passed under the authority given to it by Section 118. There can therefore be no doubt that Section 318 was applicable.

5. We accordingly allow this appeal and reversing the order of the Court below restore that of the Court of the first instance with costs in all Courts.


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