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Allahabad High Court · body

1979 DIGILAW 674 (ALL)

Rafiq Ahmad v. District Magistrate

1979-07-05

K.C.AGRAWAL, K.M.DAYAL

body1979
JUDGMENT : 1. Rafiq Ahmad, the Petitioner, submitted a plan for making constructions over a plot situate in Civil Lines, Roorkee, district Saharanpur. After an enquiry, the Public works Committee of the Municipal Board, Roorkee, Respondent 3, gave its sanction u/s 180(1) of UP Municipalities Act. On March 30, 1970, the Petitioner commenced the constructions. On July 7, 1970, he received a notice from the Municipal Board requiring him to stop further constructions. To this notice, an objection was filed on July 8, 1970. The Petitioner also appeared before the Public Works Committee on 13.7.1970, on which date the committee passed a resolution revoking the sanction on the ground that since the Petitioner had obtained the sanction on misrepresentation of facts, the same was liable to be cancelled. 2. Thereafter, on July 21, 1970, the Executive Officer of the Municipal Board served a notice upon the Petitioner u/s 186 requiring him to demolish the constructions within ten days. Against this notice, the Petitioner filed an appeal to the District Magistrate u/s 318. The District Magistrate felt doubtful whether he had jurisdiction to entertain the appeal. Thereupon, he made a reference to this Court. The reference was decided on 24.7.1972 This court held that the District Magistrate had power to go into the facts and to find whether the sanction accorded to the Petitioner had been obtained through misrepresentation. 3. After the judgment of the High Court, the appeal was again taken up on 13.7.1972, Mumtaz Ahmad, Overseer, working in the Municipal Board, appeared as a witness. On 26.10.1972, the appeal of the Petitioner was dismissed on the findings: I am of the view that the public works committee was not at all seized of the special position of constructions in the Civil Lines area and there was nothing in the application or in the site plan submitted by the Appellant to show that he wanted this permission for construction in the Civil Lines area. 4. Against this order, the present writ petition was filed. 5. The above order of the District Magistrate would show that the only ground on which the order of the Municipal Board was sustained was that since the Petitioner had not disclosed the name of the locality where the site was situated, the sanction could not be maintained. 6. 4. Against this order, the present writ petition was filed. 5. The above order of the District Magistrate would show that the only ground on which the order of the Municipal Board was sustained was that since the Petitioner had not disclosed the name of the locality where the site was situated, the sanction could not be maintained. 6. Counsel for the Petitioner invited our attention to Annexure 1' to the writ petition, which is a copy of the application given to the Municipal Board for making the constructions. In columns 3 and 4, the Petitioner clearly disclosed that he intended to make the constructions in the Civil Lines. This application was accompanied with a map of the site. On the allegations made in the writ petition, it appears that the map also indicated that the constructions were to be made in Civil Lines. Receipt of the application giving the above facts has not been denied in the counter-affidavit. It would, therefore, be seen that the Petitioner had disclosed the name of the locality in which he was to make the constructions. The ground given by the District Magistrate for dismissing the appeal is wholly unsustainable. 7. Apart from the application, the statement made by Mumtaz Ahmad Overseer, which is Annexure 9' would also show that there was material on record establishing that the application was in respect of the site situated in Civil Lines. It appears that the District Magistrate assumed the basic facts against the Petitioner and dismissed the appeal. 8. We are aware that this Court does not act as a court of appeal while dealing with a writ of certiorari. In the instant case, however, the appeal filed by the Petitioner had been dismissed on the sole ground that the application filed by the Petitioner did not disclose the name of the locality. This ground is not made out from the evidence. As the mistake committed by the District Magistrate is apparent on the face of the record, being based on a ground which is non-existent, his judgment cannot be sustained. 9. Nothing was pointed out either before the District Magistrate or before us that the sanction had been obtained by the Petitioner through fraud or misrepresentation. As the mistake committed by the District Magistrate is apparent on the face of the record, being based on a ground which is non-existent, his judgment cannot be sustained. 9. Nothing was pointed out either before the District Magistrate or before us that the sanction had been obtained by the Petitioner through fraud or misrepresentation. As the District Magistrate had not found that the finding given by Respondent 3 holding that the permission had been obtained fraudulently or on misrepresentation, he should have allowed the appeal. At this place, it may be pointed out that the power to rescind or revoke resolution granting sanction could be exercised u/s 180(6) of UP Municipalities Act only when the sanction had been obtained through fraud or misrepresentation. No fraud or misrepresentation was established either before the Public Works Committee or before the District Magistrate. Hence, the resolution of the Municipal Board is also vitiated as the judgment of the District Magistrate. 10. For all these reasons, the writ petition succeeds and is allowed. The order of the District Magistrate dated 26.10.1972 as well as the resolution of the Municipal Board dated 13.7.1970 are quashed. In the circumstances, we direct the parties to bear their own costs.