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2003 DIGILAW 1339 (ALL)

Azmat Ullah v. Chief Judicial Magistrate

2003-05-23

RAKESH TIWARI

body2003
ORDER : Rakesh Tiwari, J. Heard learned Counsel for the parties and also perused the record. 2. This petition is directed against the order dated 15.10.1998 passed by the C.J.M., Bijnore, Respondent No. 1 in Appeal No. 23 of 1997, u/s 318 of the U.P. Nagar Palika Act. 3. The appeal was filed against the judgment and order dated 27.1.1997, passed by the Chairman, Nagar Palika Parishad, Afzalganj, District Bijnore by which the map for sanction was rejected. 4. The facts in brief are that the Petitioner purchased the land in dispute situated in Mohalla Begum Sarai, Qasba Afzalganj, Tehsil and district Bijnore, through a registered sale deed on 12.8.1983. Thereafter he moved an application u/s 178 of the U.P. Municipalities Act before the Chairman for sanction of the map along with the proposed plan and deposited the fee as required under the rules for sanction of the map. It is alleged that Respondent No. 2 illegally rejected the Petitioner's application dated 22.1.1997 as the order rejecting the sanction of the map was without any notice and opportunity to the Petitioner and against the material and evidence on record. It has also been averred in the petition that the order has been passed on irrelevant considerations. 5. Aggrieved by the order dated 22.1.1997, the Petitioner filed an appeal before the C.J.M., Bijnore, which was numbered as Appeal No. 23 of 1997, and the same was dismissed by him on 15.10.1998 affirming the order dated 22.1.1997. 6. Learned Counsel for the Petitioner contends that the provisions of Section 180 (2) of the Municipalities Act, provides that if the Board rejects permission, then reasonable opportunity of hearing is to be given to the aggrieved party to put up his case. It has been further submitted that the Board has ignored all cannons of law and well established principles of natural justice and rejected the permission of the Petitioner without affording any opportunity of hearing to the Petitioner. 7. Reliance has been placed on Municipal Board Meerut through the Chairman v. Mohd. Zaki and Ors. 1945 ALJ 504, in which it has been held that Municipal Board cannot assume the functions of the Civil Courts and refuse to sanction for making construction on the ground that it would interfere with the right of light and air of another person. Reliance has been placed on Municipal Board Meerut through the Chairman v. Mohd. Zaki and Ors. 1945 ALJ 504, in which it has been held that Municipal Board cannot assume the functions of the Civil Courts and refuse to sanction for making construction on the ground that it would interfere with the right of light and air of another person. The Boards have no right to go into private disputes and refuse sanction on considerations which have nothing to do with the building bye-laws. 8. The application for sanction of map can only be rejected if the proposed plan has been submitted in contravention of any bye-laws, but there is no such finding by any of the courts below, and as such the order dated 15.10.1998 is liable to be quashed. 9. The only point raised by the counsel for the Petitioner is that before passing the order dated 22.1.1997 rejecting application, the Nagar Palika had to give opportunity of hearing to the Petitioner. It is against principles of natural justice. In order of dismissal of the appeal dated 15.10.1998 the appellate court has ignored this aspect. 10. The Board u/s 180 of the Municipalities Act was bound to give an opportunity of hearing to the Petitioner and to communicate in writing the reasons for such refusal. Every Municipal Board has certain building bye-laws which are framed keeping in view the sanitary and other requirements of the city, whenever an application for sanction for construction of a building is made, it is the duty of the Board to see whether the proposed constructions in any manner contravenes the building bye-laws. It is the duty of the Board to grant the sanction. The Board has to act according to law and consider the application for sanction in accordance with the building bye-laws. In the instant case, the Board has acted wholly illegally and arbitrarily. 11. In view of the facts and the circumstances of the case, no opportunity was given to the Petitioner, the writ petition is liable to be allowed. Accordingly, this petition is disposed of with a direction to Respondent No. 2 to pass fresh order on the application of the Petitioner after affording full opportunity to the Petitioner of being heard within a period of two months from the date of production of a certified copy of this order before him. 12. Accordingly, this petition is disposed of with a direction to Respondent No. 2 to pass fresh order on the application of the Petitioner after affording full opportunity to the Petitioner of being heard within a period of two months from the date of production of a certified copy of this order before him. 12. With the directions made above, the petition is disposed of finally. No order as to costs.