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1980 DIGILAW 847 (ALL)

Haji Ayub v. Municipal Board, Balrampur, Dist. Gonda

1980-09-16

K.N.GOYAL, S.C.MATHUR

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JUDGMENT S.C. Mathur, J. - The petitioners are aggrieved by notice issued by the Executive Officer of the Municipal Board, Balrampur, district Gonda under Section ls6 of the U.P. Municipalities Act, 1916. 2. The petitioners are the owners of a certain property which is known as Sabzimandi, situated at Balrampur, district Gonda. The petitioners admittedly constructed eight feet high wall. It is not disputed by the petitioners that no permission had been obtained from the Municipal Board for raising the wall. It has also not been alleged in the writ petition that no permission was required from the Municipal Board for raising the construction. The notice has been challenged on two grounds. Firstly, it is alleged that the wall is not a building within the meaning of section 185 of the Act and, therefore, no notice under section 186 could be issued. Secondly, it is urged that the Executive officer could not exercise the powers of the Municipal Board and notice under section 186 could be issued only after resolution had been adopted by the Board. 3. Section 185 refers to illegal erection or alteration of a building. It provides that if any building is constructed is contravention of the provisions of the Act or the bye-laws. The person who constructs such building shall be liable upon conviction to a filed which may extend to one thousand rupees. Section 186 confers powers upon the Board to order demolition of a building the construction of which would be an offence under section 185. The term `Building' has been defined in sub-section (2) of section 2 as follows : "Building' means a house, outhouse, stable, shed, hut or other enclosure or structure whether of masonry bricks, wood, mud, metal or any other material whatsoever, whether used as a human dwelling or otherwise, and includes any veranda, platform, plinth, staircase, door step, wall including compound wall other than a boundary wall of a garden or agricultural land nor appurtenant to a house but does not include a tenant or other such portable temporary shelter." 4. From the above definition it is clear that a wall is also a building for the purposes of sections 185 and 186. The argument of the learned counsel, that no notice could be issued because the wall was not a building is, therefore, not tenable. 5. From the above definition it is clear that a wall is also a building for the purposes of sections 185 and 186. The argument of the learned counsel, that no notice could be issued because the wall was not a building is, therefore, not tenable. 5. Under section 186 the power to issue notice has been conferred upon the Board. The functions of the Board which may be performed by the Executive Officer as specified in section 60, material portion of which read as follows : "In any municipality where there is an Executive Officer the following powers of the board shall be exercised by such officer, and save as otherwise provided in section 62 not otherwise, namely, - (a)... (b)... (c)... (d) the powers conferred under section or sub-section specified in the first column of Schedule II or where such sections or subsections are followed by the words `In par t'by such parts thereof as are indicated by the description in Column 2 of the said Schedule and the power to do all things necessary for the exercise of these powers ; (e)... (f)... 6. Section 186 is also covered in Schedule II referred in clause (d) above. As such, the notice under section 186 which was referred to be issued by the Board could be issued by the Executive Officer. 7. Apart from the above, we find that the petitioners admittedly constructed the wall without obtaining permission from the Municipal Board. The petitioners, therefore, admittedly committed* an illegality. The petitioners are, therefore, not entitled to invoke extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 8. In view of the above, the writ petition fails and is hereby dismissed, but without any order as to costs. Stay order, if any, shall stand discharged.