STATE OF U P Vs. RAJ NARAIN AGARWAL

JUDGEMENT

(1.) This is an appeal by the State against an order of Mr. Justice Mehrotra by which he allowed a petition filed by the respondent under Article 226 of the Constitution.

(2.) The Administrator of the Improvement Trust, Agra, acting under bye-law No. 3(1) of the Bye-laws of the Agra Municipal Board issued a notice to the respondent directing him to remove what was said to be an encroachment on a portion of land measuring 329.7 square yards on Nazul Plot No. 2325 situate at Phatak Suraj Bhan, Belanganj, Agra. As the notice was not complied with within the time allowed an order was passed by the Administrator directing that the encroachment be removed by the agency of the Agra Improvement Trust at the cost of the respondent. The respondent then filed the writ petition out of which this appeal has arisen and prayed that the notice as well as the order be quashed by a writ of certiorari and be not allowed to be enforced. The ground urged in support of the petition was that bye-law No. 3 under which the impugned notice had been issued and the subsequent order had been passed was ultra vires as it infringed the provisions of Article 14 of the Constitution. This contention was accepted by the learned Judge and holding the bye-law to be unconstitutional he allowed the writ petition. The correctness of the decision is questioned in this appeal.

(3.) We have heard learned counsel for the appellant. In our opinion the appeal has no force. The main ground on which the bye-law in question was held to be unconstitutional was that it infringed the right of equality guaranteed by Article 14 of the Constitution. The learned Judge points out that if a similar encroachment had been made on the land of some other person that person would have been required to file a suit for its removal. In that suit all questions of title could have been raised and decided. Bye-law No. 3 (1) of the Agra Municipal Board however permitted the State, if the encroachment was alleged to have been made on its land, to get the encroachment removed in a summary manner, without any effective opportunity being given to the person concerned to show that there was really no encroachment and that the, land that was claimed to be Nazul land was his own property. Learned counsel for the appellant has not been able to satisfy us that the view taken by the learned Judge was incorrect. It appears to be in accord with the view taken in two Division Bench decisions of this Court reported in Brigade Commandeer, Meerut Sub-Area v. Ganga Prasad, 1956 All LJ 251 : (AIR 1956 All 507) and Bir Pratap Singh v. State of U. P., 1960 All LJ 52. In the former case the provisions of the Government Premises (Eviction) Act, 1950, and in the latter those of the U. P. Government Land (Eviction and Kent Recovery) Act were held to be ultra vires on similar grounds. We have therefore no difficulty in agreeing with the learned Judge that the bye-law in question was invalid and unconstitutional. That being so the notice issued under the bye-law and the order consequent On the notice could not be upheld and were bound to be quashed. There is therefore no force in this appeal. It is dismissed with costs.