NAGAR PALIKA ALMORA Vs. CHIEF JUDICIAL MAGISTRATE ALMORA

JUDGEMENT

(1.) BY means of this writ petition the petitioner prays for a writ of certiorari, order or direction of this Court quashing the order dated 21 -05 -1993 passed by the Chief Judidal Magistrate, Almora (respondent no. 1), whereby the learned C.J.M. allowed the appeal preferred by the respondent no. 2 and set -aside the order of the petitioner dated 16 -02 -1993 relating to the plan of the building in appeal no. 1 of f993 Chandra Mohan Tiwari Vs. Nagar Palika.

(2.) BRIEF facts giving rise to the present writ petition are that the Executive Officer Nagar Palika Almora sent a letter dated 18 -01 -1993 to the respondent no. 2 alleging therein that he was constructing a building without the sanctioned Map thereby violating the provisions of Municipalities Act 1961 (hereinafter referred to as the Act). By this letter the respondent no. 2 was required to stop the construction work within 24 hours from the date of receipt else he would be put to prosecution. The respondent paid no heed to the aforesaid letter, therefore vide letter dated 22 -11 -1993 the petitioner authority informed the respondent no. 2 that the period of notice had expired and he is bound to take necessary action in the matter. Consequently, the Nagar Palika issued an notice under Sections 185, 186 and 307 of the aforesaid Act to respondent no.2 dated 23 -01 -1993 stating therein that the alleged construction having been carried out by him was illegal punishable under the Act and the respondent was directed to remove the illegal construction within 24 hours, otherwise he was required to be prosecuted under the relevant law. Ultimately the petitioner -authority rejected the building plan of the respondent submitted to the petitioner on 19 -1 -1993 by holding that the disputed construction was illegal vide order dated 16 -02 -1993. Alongwith the memo of writ petition the petitioner has annexed copies of notice issued by the petitioner to the respondent no.2 dated 18 -1 -1993. notice dated 22 -1 -1993 and notice dated 23 -1 -1993 as well as.

(3.) THE ground of challenge before this Court as raised by the Municipal Board is that the finding of the Chief Judicial Magistrate that the respondent no.2 continued his 'construction work without getting the plan sanctioned from Nagar Palika, Almora; that the construction work carried out by the respondent no. 2 without getting his plan approved was illegal and that the act of the petitioner Municipal Board was proper In view of the provisions of Section 180 (5) of the Municipalities Act, 1916 which provides that "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". The petitioner has also raised a ground that the finding of the Chief Judicial Magistrate that the only course open to the Nagar Palika was to take action against the respondent no. 2 according to the provisions of the Municipalities Act is perverse. It was submitted that the provisions of imposing' penalty and fine as per Section 185 of the Act is in addition to the powers of the Nagar Palika and the Municipal Board can take action otherwise than penalty and punishment as per Section 185. It was further contended that the respondent no. 2 violated the provisions of Section 180 (5) of the Act therefore the petitioner had a valid ground to refuse sanction of the plan submitted by him. The impugned order passed by the learned Chief Judicial Magistrate suffers from gross illegality.