Kusum Devi v. State of U. P. Through Secretary, Local Bodies, Govt. of U. P. , Lucknow and Others
2013-01-16
SATYA POOT MEHROTRA, ZAKI ULLAH KHAN
body2013
DigiLaw.ai
Hon'ble Zaki Ullah Khan,J.— The present Writ Petition has been filed by the petitioner under Article 226 of the Constitution of India, inter-alia, praying for directing the respondents to pass appropriate orders upon the Application of the petitioner for sanction of Map of his proposed construction over the land in question. It appears that the petitioner submitted an Application for sanction of Map along with Covering Letter dated 21.8.2012 (Annexure-4 to the Writ Petition). When no action was taken by the respondents in respect of the sanction of Map, the petitioner submitted another Application/Reminder dated 9th September, 2012. The respondent No. 3 sent a notice dated 12.9.2012 (Annexure-6 to the Writ Petition) to the petitioner, inter-alia, stating that the Southern Boundary shown in the Sale Deed in respect of the land in question was incorrect, and directing the petitioner to get corrected the Southern Boundary as shown in the Sale Deed. The petitioner thereupon submitted a Representation dated 19th September, 2012, inter-alia, stating that the Southern Boundary as shown in the Sale Deed in respect of the land in question was correct, and requesting the concerned Authority to grant sanction in respect of the Map submitted by the petitioner. Copy of the Representation dated 19.9.2012 has been filed as Annexure-8 to the Writ Petition. Counter Affidavit has been filed on behalf of the respondent Nos. 2 and 3 through Sri Raj Kumar Pandey, learned counsel for the said respondents. Rejoinder Affidavit in reply to the aforesaid Counter Affidavit has been filed on behalf of the the petitioner. In the Counter Affidavit filed on behalf of the respondent Nos. 2 and 3, the said respondents reiterated their stand in regard to the incorrectness of the Southern Boundary as shown in the Sale Deed in respect of the land in question. In the Rejoinder Affidavit, the petitioner has reiterated her stand that there was no error in the Southern Boundary as shown in the Sale Deed in respect of the land in question. Today, a Supplementary Counter Affidavit has been filed on behalf of the respondent Nos. 2 and 3. Along with the Supplementary Counter Affidavit, copy of an order dated 2nd January, 2013 passed by the respondent No. 2 has been filed. By the said order dated 2nd January, 2013, the respondent No. 2 has rejected the Application for sanction of Map submited by the petitioner.
2 and 3. Along with the Supplementary Counter Affidavit, copy of an order dated 2nd January, 2013 passed by the respondent No. 2 has been filed. By the said order dated 2nd January, 2013, the respondent No. 2 has rejected the Application for sanction of Map submited by the petitioner. It has further been observed in the said order dated 2nd January, 2013 that the petitioner may again submit an Application for sanction of Map after making rectification in the Sale Deed in respect of the land in question. We have heard Manish Kumar Nigam, learned counsel for the petitioner, the learned Standing Counsel appearing that the respondent No. 1 and Sri Raj Kumar Pandey, learned counsel for the respondent Nos. 2 and 3. Sri Raj Kumar Pandey, learned counsel for the respondent Nos. 2 and 3 submits that in view of the order dated 2nd January, 2013 passed by the respondent No. 2, no further orders are required to be passed in the Writ Petition which was filed making prayer that the respondents be directed to pass appropriate orders upon the Application of the petitioner for sanction of Map for her proposed construction. Learned counsel for the respondent Nos. 2 and 3 further submits that the petitioner has got an alternative remedy of filing Appeal under Section 318 of the U.P. Municipalities Act, 1916 (in short " the 1916 Act") against the said order dated 2nd January, 2013. Sri Manish Kumar Nigam, learned counsel for the petitioner submits that the order dated 2nd January, 2013 passed by the respondent No. 2 is illegal, and the ground mentioned in the said order is unsustainable. We have considered the submissions made by the learned counsel for the parties. Section 178 of the 1916 Act provides for giving notice by a person before beginning to erect a new building or new part of the building, or to re-erect, or make a material alteration in a building, or to make or enlarge a well. Section 180 of the 1916 Act deals with the grant or refusal to grant sanction by the Municipality in respect of any work of which notice has been given under Section 178 of the said Act. Section 180 of the 1916 Act provides as under: "180.
Section 180 of the 1916 Act deals with the grant or refusal to grant sanction by the Municipality in respect of any work of which notice has been given under Section 178 of the said Act. Section 180 of the 1916 Act provides as under: "180. Sanction of work by [Municipality].- (1) Subject to the provisions of any bye-law the [Municipality] may either refuse to sanction any work of which notice has been given under Section 178 or may sanction it absolutely or subject to,- (a) any written directions that the [Municipality] deems fit to issue in respect of all or any of the matters mentioned in sub-head (h) of heading A of Section 298, or (b) a written direction requiring the set-back of the building or part of a building to the regular line of the street prescribed under Section 222, or, in default of any regular line prescribed under that Section, to the line of frontage of any neighbouring building or buildings. (2) In the case of refusal to sanction under sub-section (1), the [Municipality] shall communicate in writing the reasons for such refusal to the person giving notice under Section 178. (3) Should the [Municipality] neglect or omit for one month after the receipt of a valid notice under Section 178 to make and deliver to the person who has given such notice an order of the nature specified in sub-section (1) in respect thereof, such person may by a written communication call the attention of the [Municipality] to the omission of neglect, and, if such omission or neglect continues for a further period of fifteen days, the [Municipality] shall be deemed to have sanctioned the proposed work absolutely. (4) Provided that nothing in sub-section (3) shall be construed to authorize any person to act in contravention of this Act or of any bye-law.
(4) Provided that nothing in sub-section (3) shall be construed to authorize any person to act in contravention of this Act or of any bye-law. [(5) No person shall commence any work of which notice has been given under Section 178 until sanction has been given or deemed to have been given under this section.] [(6) The [Municipality] may within six months cancel or modify a sanction granted by it under sub-section (1) if it is found that the sanction was secured through fraud or misrepresentation and any work done thereunder shall be deemed to have been done without such sanction : Provided that before cancelling or modifying any sanction, the [Municipality] shall give a reasonable opportunity to the party concerned of being heard.]" Thus under sub-Section (1) of Section 180 of the 1916 Act, the Municipality has been given power either to refuse sanction in respect of any work of which notice has been given or grant sanction in respect of such work. Section 318 of the 1916 Act, lays down as follows: "318. Appeals from order of [Municipality].-(1) Any person aggrieved by any order or direction made by [Municipality] under the powers conferred upon it by Sections 180(1), 186, [204], 205(1), 208, 211, [212], 222 (6), 241(2), 245, 278 and 285 or under a bye-law made under Heading 'G' of Section 298, may within thirty days from the date of such direction or order, exclusive of the time requisite for obtaining a copy thereof, appeal to such officer as the [State Government] may appoint for the purpose of hearing such appeals or any of them, or failing such appointment, to the District Magistrate. (2) The Appellate Authority may, if it thinks fit, extend the period allowed by sub-section (1) for appeal. (3) No appeal shall be dismissed or allowed in part or whole unless reasonable opportunity of showing cause or being heard has been given to the parties." Thus, sub-section (1) of Section 318 of the 1916 Act, inter-alia, provides that any person aggrieved by any order or direction made by Municipality under the powers conferred upon it by Section 180(1) of the said Act may Appeal to the Appellate Authority within the time mentioned in the said provision.
The order dated 2nd January, 2013 passed by the respondent No. 2, copy whereof has been filed as Annexure to the the Supplementary Affidavit filed today on behalf of respondent Nos. 2 and 3, has evidently been passed by the respondent No. 2 in exercise of powers conferred under sub-section (1) of Section 180 of the 1916 Act. Therefore, the petitioner has remedy of filing Appeal under Section 318 of the 1916 Act in respect of the said order. Having regard to the facts and circumstances of the case and having considered the submissions made by the learned counsel for the parties and keeping in view the nature of controversy involved in the present Writ Petition, we are of the view that it will be appropriate that the petitioner be relegated to the alternative remedy available to the petitioner under Section 318 of the 1916 Act. The Writ Petition is, therefore, liable to be dismissed on the ground of availability of alternative remedy to the petitioner, and the same is dismissed on the said ground. _____________