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Allahabad High Court · body

2018 DIGILAW 1753 (ALL)

Kafeel Khan v. State of U. P.

2018-08-08

D.B.BHOSALE, YASHWANT VARMA

body2018
JUDGMENT : 1. Heard Mr. Rafat Raza Khan, learned counsel for the petitioner and Mr. Devendra Kumar, learned counsel for the respondent Nos. 3 and 4. 2. In terms of the order impugned a map for development duly sanctioned under the provisions of the U.P. Municipal Act, 1916 has been cancelled. The sole reason assigned is that the petitioner obtained the sanction in respect of land which was recorded as a public path. 3. It is not disputed that the land in question was purchased by the petitioner in terms of a registered sale deed dated 18 May, 2016. Having applied for raising constructions, the map itself was sanctioned by the Authority in terms of an order dated 22 September, 2017. The sanction has been revoked in terms of the impugned order based upon some complaints which were received by the Nagar Palika Parishad by virtue of the provisions of Section 180 of the Act. 4. The municipal body has been conferred the power to cancel or modify the sanction granted if it be found that the same has been secured through fraud or misrepresentation. This power stands vested in the municipal body by virtue of sub-section (6) of Section 180 of the Act which reads thus. "(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". 5. As is evident from a reading of sub-section (6), the power to cancel or modify a sanction granted is further hedged with the stipulation that the same must be exercised within six months. 6. We, however, note that although the sanction in the facts of the present case was granted on 22 September, 2017, the impugned order has clearly been passed after the expiry of the period of six months. More fundamentally, we note that in terms of the provisions of sub-section (6), an order for cancelling or modifying the sanction cannot be passed without affording an opportunity of hearing to the party concerned. In the present case, the undisputed position is that no such opportunity was provided to the petitioner. More fundamentally, we note that in terms of the provisions of sub-section (6), an order for cancelling or modifying the sanction cannot be passed without affording an opportunity of hearing to the party concerned. In the present case, the undisputed position is that no such opportunity was provided to the petitioner. Learned counsel for the Nagar Palika Parishad does not dispute that no show-cause notice was issued prior to the passing of the order impugned? nor was the petitioner afforded an opportunity to represent against the proposed cancellation. The impugned order therefore consequently deserves to be set aside on this ground alone. 7. The writ petition is accordingly allowed. The impugned order dated 4 July, 2018 is hereby quashed. It shall however be open to the respondents to proceed in the matter afresh, if so chosen, in accordance with law.