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Municipal Council, Ajmer Vs. Narinder Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Second Appeal No. 374 of 1971
Judge
Reported inAIR1982Raj289; 1982()WLN521
ActsRajasthan Municipalities Act, 1959 - Sections 285 and 285(2); Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 9
AppellantMunicipal Council, Ajmer
RespondentNarinder Singh
Appellant Advocate S.K. Jindal, Adv.
Respondent Advocate S.N. Bhargava, Adv.
DispositionAppeal allowed
Cases Referred and Jagneswar Nath v. Jatra Mohan Sarkar
Excerpt:
rajasthan municipalities act, 1959 - sections 170 & 285--municipal board resolution sanctioning construction under section 170--held, collector can stay operation of order under section 285 & not under section 170;if the resolution of a board sanctioning a construction to a person under section 170 of the act causes or is likely to cause injury or annoyance to the public or a breach of the peace or is unlawful then such a resolution can be suspended. the collector under section 170 of the act had no power to suspend any order granting sanction for construction to a person even if it came to his notice suo mo-that the case was unlawful or might cause injury or there was a danger of the breach of the peace and he could have only acted under section 285 of the act.;(b) rajasthan.....n.m. kasliwal, j. 1. this civil second appeal by the municipal council, aimer is directed against the judgment and decree of the learned civil judge, aimer, dated february 11, 1971 confirming the judgment and decree passed by the munsif magistrate, aimer city (east), ajmer in civil suit no. 80/66.2. the facts of the case in narrow-compass are that the plaintiff-respondent brought a suit for perpetual injunction against the municipal council, ajmer on the allegations that the plaintiff, with a view to put up constructions on the site at daulat bagh given in the plan attached with the plaint, applied to the municipal council, aimer on 1-9-1965 for granting sanction of the constructions mentioned in the aforesaid plan. the said plan with the modification mentioned in the letter, by the.....
Judgment:

N.M. Kasliwal, J.

1. This Civil Second Appeal by the Municipal Council, Aimer is directed against the judgment and decree of the learned Civil Judge, Aimer, dated February 11, 1971 confirming the judgment and decree passed by the Munsif Magistrate, Aimer City (East), Ajmer in Civil Suit No. 80/66.

2. The facts of the case in narrow-compass are that the plaintiff-respondent brought a suit for perpetual injunction against the Municipal Council, Ajmer on the allegations that the plaintiff, with a view to put up constructions on the site at Daulat Bagh given in the plan attached with the plaint, applied to the Municipal Council, Aimer on 1-9-1965 for granting sanction of the constructions mentioned in the aforesaid plan. The said plan with the modification mentioned in the letter, by the defendant-council dated 8-10-1965 was sanctioned and the same was duly conveyed to the plaintiff' with the corrected sanctioned plan by the aforesaid letter dated 8-10-1965. The defendant subsequently, by its letter dated 6-11-65, which was delivered to the plaintiff on 17-2-66 conveyed to the plaintiff not to start constructions till further orders from the defendant. According to the plaintiff, the defendant had no legal right to ask the plaintiff not to start constructions or to alter, modify or cancel a sanction once granted. The plaintiff after the receipt of the sanction had every right to construct the building according to the sanctioned plan and the defendant had no right to suspend its resolution and as such the action of the defendant was illegal and without jurisdiction. The plaintiff apprehended that the defendant might interfere with the putting up of the constructions by the plaintiff, as also, of the taking of steps, to remove the constructions, which might be put up by the plaintiff. In these circumstances the plaintiff prayed to issue a permanent injunction in favour of the plaintiff and against the defendant, directing the defendants, its agents, officers, workmen, servants etc., not to interfere with the putting up of the plaintiff's constructions or starting of the constructions by the plaintiff in accordance with the sanctioned plan,

3. The Municipal Council filed a written statement and took the plea that the sanction was subject to certain conditions contained in the letter dated Oct. 8, 1965, the sanction was given bythe Building Works Committee by its resolution dated 8-10-1965. It was stated in the additional pleas that after the sanction was communicated to the plaintiff, the improvement trust sent a letter dated 11-10-1965 to suspend the sanction. Thereupon, a letter No. CPO-711 dated 11-10-1965 was sent to the plaintiff by registered A. D. post asking him not to proceed with the constructions till he heard from the defendant. A telegram to the same effect was sent on 13-10-1965 but it was returned on 14-10-1965 undelivered with the remarks that the plaintiff was out of station. Consequently, a copy of letter No. CPO-711 dated 11-10-1965 was affixed on plaintiff's residence in presence of two witnesses. It was further pleaded that the Collector, Aimer suspended the execution of resolution dated 8-10-1965. The defendant communicated the said order of the Collector to the plaintiff on 6-11-1965 and asked him not to start the constructions till further orders. The defendant had a right to modify or cancel the resolution of the Building Works Committee. It was also pleaded that the order of the Collector was binding on the plaintiff as well as the defendant. The said order of the Collector was under scrutiny of the State Government, which had the power to rescind or confirm the order. The order of the Collector could not be challenged in Civil Court. On the basis of the aforesaid pleadings of the parties, the trial court framed the following issues:--

(1) Whether the directions of the defendant contained in its letter dated 6-11-1965 requiring the plaintiff not to start the constructions till further orders are without jurisdiction, illegal and ultra vires?

(2) Whether the Collector. Ajmer suspended the execution of Resolution No. 28 dated 8-10-1965? If so, to what effect?

(3) Is the Civil Suit barred by the Rajasthan Municipalities Act, 1959?

(4) To what relief is the plaintiff entitled?

4. The parties did not lead any oral evidence and placed reliance only on documentary evidence placed on record by them. Learned trial court under issue No. 1 held that it was only the illegality or ultra vires of the order of the Collector Ex. A/4 dated 3-11-1965, which required to be decided and the illegality or otherwise of Ex. 3 an order of theEngineer. Municipal Council. Ajmer dated 6-11-1965 informing the plaintiff not to start the constructions till further orders could not be decided in separation to the order of the Collector Ex. A/4. The decision on this issue thus depended wholly on the decision under issue No. 2, wherein the effect of the order of the Collector suspending the resolution of the defendant was to be seen and if the order of the Collector was found to be perfectly legal, the plaintiff would have no grievance under issue No. 1 and if on the contrary, the order of the Collector was held to be ultra vires and without jurisdiction, this issue No. 1 will automatically stand decided in favour of the plaintiff. Under Issue No. 2, learned trial court held that the order of the Collector was without jurisdiction and ultra vires and as such it had no effect against the plaintiff. Issue No. 3 in view of the decision of issues Nos. 1 and 2 in favour of the plaintiff, was also decided against the defendant. In view of the above findings, the learned trial court decreed the suit in favour of the plaintiff,

5. The Municipal Council aggrieved against the judgment and decree of the trial court, filed an appeal, which came up for consideration before the learned Civil Judge. Learned Civil Judge also upheld the view taken by the trial court and held that the order Ex. A/4 passed by the Collector. Ajmer suspending the resolution dated 8-10-1965 was ultra vires of the provisions of the Municipalities Act and so without jurisdiction. Learned Civil Judge further held that the order of the Collector Ex. A/4 having been found to be ultra vires and without jurisdiction, the order of the State Government, if any, passed under Section 285(2) of the Act confirming the Collector's order will also be illegal and ultra vires and the Municipal Council was not bound to obey an order, which was nullity in law. In the result, the learned Civil Judge dismissed the appeal.

6. Hence this second appeal by the defendant.

7. It was contended by Mr. Jindal, learned counsel for the appellant that the courts below committed a serious error of law in holding that the order Ex. A/4 passed by the Collector, was ultra vires and without jurisdiction and as such nullity in law. It was contended that the order Ex. A/4 clearly mention- ed in detail the grounds on which the Collector acted under Sec. 285 of the Rajasthan Municipalities Act. The constructions sought for by the plaintiff was adjoining the Anasagar Bund an ancient monument and was in a protected area or a prohibited area within the Provisions of the Ancient Monuments Preservation Act and Rules made thereunder. The plaintiff had submitted an application in pursuance of the Notification No. F.4/32/LSG/59 dated 3-9-1965 to the Chairman. Improvement Trust, who keeping in view the location of the proposed site near the Anasagar Bund an ancient and protected monument made a reference to the Superintendent, Archeological Survey of India, who vide his letter No. AJR/2-RAJ/64-65-374 dated 13-1-1865 objected to the permission being accorded on the ground that a part of the proposed constructions and site fall under the area already proposed for protection. The plaintiff concealed these facts from the Municipal Authorities and obtained the above sanction surreptitiously in his favour. The matter was brought to the notice of municipal authorities by the Chairman, Improvement Trust by its letter dated Oct. 11, 1965, the municipal authorities immediately by letter No. CPO/711 dated 11-10-1965 stayed the sanction communicated to the plaintiff vide letter dated 8th Oct. 1965. It was also pointed out that a case under Section 91 of the Land Revenue Act against the plaintiff and his father Taran Singh had been registered and an ad interim stay order u/s. 212 of the Rajasthan Tenancy Act had been issued against these trespassers. It was further contended that the Collector under Section 285 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as the Act) was fully empowered to suspend any order or Resolution of a board, if in his opinion such order or resolution was unlawful. It was further pointed out that the State Government had framed the Rajasthan Improvement Trust (Coordination between the Municipalities and Improvement Trust in the matter of Construction of Buildings) Rules, 1964 (hereinafter referred to as the Co-ordination Rules) and the same were brought into force bv publication in the Official Gazette (Rajasthan Extraordinary) Gazette (Town Planning Department) Part IV-(Ga) dated 10-9-1964. The said rules were amended by Notification No. F.4/32/LSG/59 dated 3-9-1965, wherebyin Rule 2 for Sub-rule (i) the following was substituted:

'(i) In the area within the jurisdiction of the Trust, whenever a building is proposed to be erected, re-erected, altered, or added a plan shall be furnished to the Improvement Trust concerned and a copy thereof to the Municipality concerned duly prepared in accordance with the bye-laws framed under Section 170 of the Rajasthan Municipalities Act, 1959.

(ii) In Sub-rule (2), the expression 'fifteen days' occurring after the expression 'within a period of shall be substituted by the expression 'thirty days'.'

Under Sub-rule (2), it was incumbent to furnish a plan to the Improvement Trust concerned whenever a building was proposed to be erected, re-erected, altered or added. The Improvement Trust shall scrutinise the plan so received and ensure that the plan was in conformity withthe scheme in force in the area or did not run counter to any master plan under preparation for the area and return the same along with its recommendations to the Municipality within a period of 30 days from the date of receipt of such plan. If the Improvement Trust has approved of the plans the Municipal Board/Council shall sanction the same. If, however, the Trust has suggested modifications, the plans shall be returned to the applicant for carrying out the modifications in the light of the recommendations of the Trust, and for representation thereafter, directly to the Municipal Board/Council for sanction. It is thus contended that there was a violation of the aforesaid Rules also in concealing the facts that the Urban Improvement Trust had raised an objection and in obtaining the sanction from the Municipal Council in a surreptitious manner. It was further argued by Mr. Jindal, learned counsel for the appellant that the main controversy in the case was about the validity of the Order Ex. A/4 issued by the Collector and in the absence of the Collector being made a party no relief could be granted to the plaintiff. It was further argued in this regard that the appellant Municipal Council was bound to obey the order passed by the Collector under Section 285 of the Act and the order Ex. 3 issued by the Municipal Council was merely an order issued in compliance of the Order of the Collector. Under these circumstances, the view taken by the lower courts that the Collector, Ajmer was not a necessary party in the case was totally erroneous.

8. On the other hand, it was contended by the learned counsel for the respondent that elaborate provisions are contained for the grant or refusal of permission for raising any constructions under Section 170 of the Act. Under sub-section (12) of Section 170 of the Act any person aggrieved by such order. was entitled to prefer an appeal to the Collector, within 30 days. So far as the Municipal Board was concerned, its order granting permission for constructions was final. Only the person seeking permission could go in appeal if the order of the Municipal Board was in any way prejudicial to his interest. It was further argued that Section 285 of the Act was contained in Chapter XII of the Act, which consisted of Ss. 283 to 301. This Chapter gave a control and dealt with the powers of the State Government and its functionaries to control and supervise the functioning of the Municipal Board. The provisions contained in this Chapter did not deal with any relations of the Board vis-a-vis public. Under the proviso to Sub-section (2) of Section 285 a reasonable opportunity of being heard by the State Government was provided to the Board only. The opportunity of being heard was not provided to the public, which might have been adversely affected by such orders. In the present case, the order Ex. A/4 was passed by the Collector without hearing the plaintiff and such order was clearly illegal and without jurisdiction. Any order passed under Section 285 of the Act could only bind the Municipal Board and not a private person. Reliance is placed on Bhairon Lal v. Bhagwat Dutt Thakur. 1955 Raj LW 517. Reliance is also placed on the following observations made by the Patna High Court in Commr. of Gaya Municipality v. State of Bihar. AIR 1975 Pat 332 (Para 8) :--

'The power vests in the State Government with certain purpose, namely to prohibit the Municipality from functioning in a manner which may be prejudicial or detrimental to the interest of the rate payers.'

It is also argued in this regard that Section 285 of the Act did not at all deal with the functioning of the Board in granting sanction or otherwise for construction of any building.

9. It was next contended that the lower courts in the facts and circumstances of this case, were right in taking the view that the Collector was not a necessary party in the case. The plaintiff was not a party to the order Ex. A/4. The order passed by the Collector in purported exercise of power under Section 285 of the Act was without jurisdiction and therefore, a nullity. The order passed by the Collector under Section 285 could have a binding effect only against the Board and was not binding on the plaintiff-respondent. So far as the plaintiff-respondent was concerned, he was only aggrieved against the Municipal Board, who had first conveyed an order of sanction by letter dated 8th Oct. 1965 and had later on withheld the same by order dated 6th Nov. 1965. The plaintiff had not received any order from the Collector and as such there was no question for the plaintiff to challenge the same. It was further argued in this connection that the objection regarding nonjoinder of the Collector as a party was not taken by the defendant in the written statement, and as such the said objection will be taken to have been waived and cannot be raised now. Reliance in this regard is placed on Jagneswar Nath v. Jatra Mohan Sarkar, AIR 1980 Gauhati 23 and Sailala v. Smt. Ngurtaiveli, AIR 1980 Gauhati 70. It was further argued that the provisions of the Rajasthan Improvement Trust (Co-ordination between the Municipalities and the Improvement Trust with regard to Construction of Buildings) Rules, 1964 override the powers of the Municipal Committee to grant sanction for construction under Section 170 of the Rajasthan Municipalities Act, which are statutory provisions made by the legislature.

10. I have given my careful consideration to the arguments advanced by learned counsel for both the parties.

11. A perusal of the documents placed on record shows that the Building Works Committee in its resolution No. 28 dated 8-10-1965 sanctioned the proposed construction with certain modifications in favour of the plaintiff Narendra Singh S/O Sardar Taran Singh, vide Ex. 1. A letter dated 11th Oct. 1965 from the Chairman, Improvement Trust. Ajmer to the President, Municipal Council. Ajmer has been placed on record by the defendant, which was denied by the Advocate for the plaintiff and it appears that the same was not proved by anyoral evidence led by the defendants and as such has not been marked any exhibit. In this letter, it is mentioned that Shri Narendra Singh had made an application to the Improvement Trust but since he felt that the U. I. T, may raise objections to the constructions, he withdrew the application from their office and submitted the same before the Municipal Council. Immediately thereon a letter was written by the Improvement Trust vide No. 1872 dated 1-9-1965 in which all the facts were given regarding the proposed construction. It was further mentioned that the facts were twisted by the Overseer and the Superintendent has made deliberate misrepresentation. The attention was also invited to Notification No. F4/32/LSG/59 dated 3-9-1965 a copy of which had already been sent directly by the Town Planning Department. In spite of this, it was stated that the said Superintendent had the courage to suggest that this area was not within the jurisdiction of Improvement Trust. The fact of the existing passage and the disposal of effluent had also been misrepresented by the officers concerned. It was, therefore, requested to take up this matter seriously for misrepresenting of the facts by the officers concerned and to suspend the sanction of this resolution and to see that the suspension order is delivered to the said Shri Narendra Singh personally. As this document has not been exhibited as such I am ignoring it from consideration. Thereafter, there is Ex A/3 on record, which is a letter No. CPO/711 of 11-10-1965 sent by registered A. D. by the Commissioner, Municipal Council. Ajmer to the plaintiff informing that the President. Municipal Council, Aimer had stayed the sanction communicated to him vide office letter No. 3834 dated 8-10-1965. Hence the plaintiff was informed not to proceed with the construction work till he heard further from this office. The receipt of this letter has been admitted by the plaintiff's counsel, then there is a detailed order passed by the Collector Ex. A. 4 dated 3-11-1965 passed in exercise of the powers conferred on him under Section 285 of the Act. Learned Collector in this order has given detailed facts and mentioned that the said plot of land was adjoining Anasagar Bund an ancient monument and a protected area or a prohibited area within the provisions of Ancient Monuments PreservationAct and Rules made thereunder and also that the plot in question being within the jurisdiction of the U. I. T., Aimer, in which case vide Notification No. F.4/ 32/LSG/59 dated 3-9-1965, if a building was proposed to be erected, re-erected, altered or added, a plan shall be furnished to the Improvement Trust concerned and a copy thereof to the Municipality concerned duly prepared in accordance with the bye-laws framed under Section 170 of the Act. It has been further mentioned that Shri Taran Singh in the first instance made an application for construction of a house on the above piece of land to the Urban Improvement Trust, Ajmer, who keeping in view the location of the proposed site near the Anasagar Bund an ancient monument made a reference to the Archeological Survey of India, who vide letter dated 13-9-1965 objected to the permission being accorded on the ground that a part of the proposed construction and the site fall under the area proposed for protection. The applicant Shri Taran Singh however, having come to know about the proposed objection withdrew his application from the Trust on 25-8-1965. It has further been observed by the Collector that instead of Shri Taran Singh his son Narendra Singh had made an application to the Municipal Council, Ajmer and the said Council by their Building and Works Committee Resolution No. 28 dated 8-10-1965, despite objections of the Urban Improvement Trust, Ajmer allowed the said constructions. Learned Collector, further observed that on further enquiry the Tehsildar, Ajmer had reported that a case under Section 91 of the Land Revenue Act against Sarva Shri Narindra Singh and Taran Singh had been registered and ad interim stay order under Section 212 of the Rajasthan Tenancy Act, 1965 had been issued against these trespassers. He has further reported that the said trespassers had started blasting stones of the 'Hill' which was adjoining the protected area of Anasagar Bund and immediate measures for the safety and preservation of the ancient monument was expedient. On this ground, the learned Collector was of the view that the said Bye-law No. 28 Ward No. 19, dated 8th Oct. 1965 of the Municipal Council, Ajmer besides being unlawful was also causing or was likely to cause injury to the protected area and therefore, in exercise of his powers conferred under Section 285, heordered that the execution of the said Resolution be suspended till further orders. This document is admitted by the learned counsel for the plaintiff. In compliance of this order of the Collector, it appears that the Engineer, Municipal Council, Aimer issued a letter Ex. A-3 dated 6-11-1965 informing the plaintiff not to start constructions. This document has been filed by the plaintiff himself and has been admitted by the defendant. Ex. A/3 is the copy of Ex. 3. The plaintiff has filed a suit and has claimed a relief of perpetual injunction against the Municipal Council only. The plaintiff has admitted the order of the Collector Ex. A/4 dated 3-11-1965. In Ex.3, there is a clear mention that the Collector and the District Magistrate, Ajmer vide its order dated 3-11-1965 had suspended the Resolution of the Building and Works Committee No. 28 of 8-10-1965. Hence the plaintiff was informed not to start the constructions as per the Resolution till he receives further orders from this office or the Collector, failing which action for its removal will be taken as per Rules. This document also makes a mention of Enc./l Collector's letter dated 3-11-1965. Thus it cannot be said by any stretch of imagination that the plaintiff was not knowing when he filed the suit that the order Ex. 3 had been issued at the behest of the order of the Collector dated 3-11-1965. Ex. 3 itself, which is an admitted document dated 6-11-1965, makes a mention that the same had been issued in view of the Collector's order dated 3-11-1965 and the same was sent to the plaintiff along with the Collector's letter dated 3-11-1965 as one of its enclosure. The defendant in the written statement though had not clearly taken the plea to implead the Collector as a necessary party but in paragraph No. 18 of the additional pleas, it was clearly stated that the order of the Collector was binding on the plaintiff as well as the defendant. In para No. 23, a plea was taken that the order of the Collector cannot be challenged in Civil Court. In my view in the face of these circumstances, the validity or otherwise of Ex. A/4 an order passed by the Collector on 3-11-1965 could not have been determined in the absence of the Collector. The Municipal Council was an authority bound to obey any orders passed by the Collector under Section 285 of the Act. It does not lie within the powerof the Municipal Council to ignore any order of the Collector even if passed in the purported exercise of powers given under Section 285. Order Ex. 3 thus was nothing more except an order issued in compliance of the Order of the Collector Ex. A/4. The problem thus arising in the case is not that the defendant Municipal Council should have taken a clear plea that the Collector was a necessary party. The real crux of the problem is whether any relief of injunction could be granted in favour of the plaintiff and against the defendant, when the defendant was taking a plea that it was bound to act as ordered by the Collector. The order Ex. A/4 is a quasi-judicial order passed under Section 285 of the Act and cannot in any manner be treated as a nullity even though for argument's sake, though not admitting, it may be considered as illegal or without jurisdiction. To treat an order as nullity is somewhat different from treating an order as illegal or without jurisdiction. An order which is a nullity under the law is nonest, but an order which is illegal or without jurisdiction can only be ignored when so determined by the court of law, Thus in these circumstances, if the plaintiff wanted order Ex. A/4 to have no effect against him, it was incumbent upon him to implead the Collector and then only he could have sought a relief of injunction against the defendant Municipal Council. An anomalous situation would arise if a decree for injunction is granted against the defendant Council as in the present case to allow the plaintiff to raise construction and on the other hand order Ex. A/4 passed by the Collector stands against the Municipal Council. As the Collector is not a party in the suit, he can certainly insist upon the Municipal Council to obey his order and as such a Civil Court cannot grant a relief which might come in conflict with a quasi-judicial order passed by an authority under a provision of the statute without impleading such quasi-judicial authority as party in the suit. The cases Sailala v. Smt. Ngurtaivali (AIR 1980 Gauhati 70) and Jagneswar Nath v. Jatra Mohan Sarkar (AIR 1980 Gauhati 23) relied upon by the learned counsel for the respondent are not the cases where an order had been passed by a quasi-judicial authority under an Act and a relief of injunction was sought against the subordinate authority not toobey such order without impleading the higher authority. Thus the aforesaid two cases render no assistance at all to the plaintiff. The appeal filed by the defendant appellant as such could be allowed on this ground above, but I would like to consider further points involved in the case.

12. Section 285 of the Act reads as under:--

'Power of suspending execution order etc. of board.-- (1) If in the opinion of any such officer as may be appointed or authorised by the State Government in this behalf the execution of any order or resolution of a board, or the doing of anything which is about to be done or is being done by or on behalf of a board, is causing or is likely to cause injury or annoyance to the public or a breach of the peace or is unlawful, he may, by order in writing under his signature suspend the execution or prohibit the doing thereof.

(2) When any such officer makes any order under this section, he shall forthwith forward to the State Government and to the Board affected thereby a copy of the order, with a statement of the reasons for making it and it shall be in the discretion of the State Government to rescind the order or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit: Provided that no order of such officer passed under this section shall be confirmed, revised or modified by the State Government without giving the board reasonable opportunity of showing cause against the said order.'

It is not in dispute that the Collector was the Officer authorised by the State Government under this section at the relevant time. I see no force in the contention of the learned counsel for the plaintiff-respondent that the order Ex. A/4 passed by the Collector is not a speaking order or does not contain the ground for passing such an order. As already mentioned above, the Collector has given detailed reasons for passing such an order and the same have been mentioned in detail in Ex. A/4. It cannot be disputed that Section 285 is one of the sections falling under Chapter XII which deals with control over the Municipal Council. Section 285 empowers an officer appointed or authorised by the StateGovernment if in his opinion the execution of any order or resolution of a board or doing of anything which is about to be done or is being done by or on behalf of a board, is causing or is likely to cause injury or annoyance to the public or a breach of the peace or is unlawful, he may by order in writing under his signature, suspend the execution or prohibit the doing thereof. The Collector in Ex. A/4 in his opinion, has found the resolution of the Board dated 8-10-1965 to be unlawful and suspended the execution of such resolution. Under Sub-section (2) of Section 285 such officer has to forward a copy of such order with a statement of the reasons for making to the State Government and it shall be in the discretion of the State Government to rescind the order or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit. It is no doubt correct that proviso to Sub-section (2) lays down that no order of such officer passed under this section shall be confirmed, revised or modified by the State Government without giving the board the reasonable opportunity of showing cause against the said order. It does not, however, mean that the State Government would not hear the party who want to support the resolution of the board. The stage of hearing the ease by the State Government has not arrived in this case and it cannot be assumed that the State Government would not hear the plaintiff if he wants to support the resolution of the Board. It is no doubt correct that Section 170 of the Act deals with the matter regarding construction proposed to be made by a person within the Municipal area. However, the legislature also intended to give a power to the officer as may be appointed or authorised by the State Government to have a control over the execution of any order or even resolution of a board if the same, in the opinion of such officer, was causing or likely to cause injury or annoyance to the public or the breach of the peace or was unlawful.

13. Thus I do not find any force in the contention of the learned counsel for the respondent that the Collector, in exercise of his powers under Section 285 could not have suspended the resolution of a board in the matter of grant of sanction of any construction within the municipal area. In my view, if the resolution of a board sanctioning a construction to a person under Section 170 of the Act causes or is likely to cause injury or annoyance to the public or a breach of the peace or is unlawful then such a resolution can be suspended. The Collector under Section 170 of the Act had no power to suspend any order granting sanction for construction to a person even if it came to his notice suo motu that the same was unlawful or might cause injury or there was a danger of the breach of the peace and he could have only acted under Section 285 of the Act. It could not be disputed that the plan in the present case should have been submitted to the Urban Improvement Trust also under the Coordination Rules as amended by Notification dated 3-9-65. In any view of the matter the legality or otherwise of the order passed by the Collector under Section 285 of the Act could not have been determined behind his back. Ought we know, in case the Collector would have been impleaded he would have justified the legality of his order by placing much more material and then alone legality or otherwise could have been determined in a proper manner.

14. The rulings: 1955 Raj LW 517. AIR 1975 Patna 332 and AIR 1963 SC 1547 relied upon by the learned counsel for the plaintiff-respondent are not at all applicable to the facts and circumstances of this case and it is not necessary to discuss the same in the view taken by me above.

15. In the result, this appeal is allowed. The judgments and decrees passed by the courts below are set aside and the suit filed by the plaintiff-respondent is dismissed. However, in the facts and circumstances of the case, the parties are left to bear their own costs throughout.


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