BALBHADRA PANDEY Vs. DISTRICT MAGISTRATE AZAMGARH

JUDGEMENT

(1.) The short question we are called upon to decide in this writ petition is as to whether respondent No. 2, who was a neighbour of the petitioner, was entitled under the provisions of the U. P. Municipalities Act hereinafter referred to as the Act to file an appeal under Section 318 thereof against an order passed by respondent No. 3 accord ing sanction under Section 180 to a plan submitted by the petitioner for erec tion of a building by him. The material facts giving rise to this writ petition are not in dispute. The petitioner had applied for sanction of a plan for construction of a house which was duly sanctioned by the municipal authorities on the 11th November, 1970. When the petitioner tried to proceed with the construction of the house, one Kedar Nath Agrawal filed an appeal against the order sanctioning the construction. The aforesaid appeal of Kedar Nath Agrawal was dismissed on 17th May, 1971. Subsequently respondent No. 2. who admittedly resides adjacent to the proposed house of the petitioner towards the south, preferred an appeal against the sanction granted in favour of the petitioner. To the appeal being entertained the petitioner took various objections, inter alia that respondent No. 12 was not an aggrieved party against the grant of the sanction of the petitioner's plan and had consequently no locus standi to prefer it and in any event the appeal was barred t y time having been filed sometime in the year 1973. The appeal had been preferred on the ground that in disregard of the Bye-Laws framed by the Municipal Board it had sanctioned the peti tioner's plan for construction of his house even though he had failed to provide for an open space of at least four feet in width along the entire frontage of the building which abutted an approach road or street. The District Magis trate, who decide the appeal, held that the order of the Municipal Board was manifestly against its Bye-laws which envisaged that at least four feet space should be left. The appeal was accordingly allowed in part and the Board's order was modified to the extent that construction were permitted to be made subject to the petitioner leaving four feet space as required by the Municipal Bye-laws. Aggrieved by the order of respondent No. 1 the petitioner has filed this writ petition praying for the issue of a writ, order or direction in the nature of certiorari quashing the order dated 30th March, 1973 passed by him. We have heard learned counsel for the petitioner as well as learned counsel for the respondents and, in our opinion, the District Magistrate acted beyond his jurisdiction in entertaining and allowing the appeal filed by res pondent No. 2. Section 178 (1) of the Act requires that before beginning, within the limits of the municipality, to erect a new building or new part of a building, or to erect or make a material alteration in a building, or to make or enlarge a well, a person shall give notice of his intention to the Board. Section 179 (1) lays down that where a bye-law has been made prescribing and requiring any information and plans in addition to a notice, no notice under Section 178 shall be considered to be valid until the information, if any, required by such bye-law had been furnished to the satisfaction of the Board. It has not been contended before us that Section 179 (1) was not complied with. Section 180, to the extent relevant for our purposes, runs as follows;- "180 (1) Subject to the provisions of any bye-law, the Board may either refuse to sanction any work of which notice has been given under Section 178 or any sanction it absolutely or subject to:- (a) any written directions that the Board 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 setback 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 any neighbouring building or buildings. (2) In the case of refusal to sanction under sub-section (1) the board shall communicate in writing the reasons for such refusal to the person giving notice under Section 178. (3) Should the Board neglect or omit for one mouth 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 be a written communica tion call the attention of the Board to the commission or neglect, and, if such omission or neglect continues for a further period of fifteen days, the Board 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. (5)--------------- " Under Section 180 (1), which has been quoted above, the Board has power either to refuse to sanction any work of which notice has been given or to sanction it absolutely or subject to the nature of directions mentioned in Clauses (a) and (b ). The refusal to sanction has to be communicated in writing to the applicant in accordance with sub-section (2) of Section 180. These provisions make it clear that in proceedings under Section 180 of the Act apart from the applicant and the Board, no third person enters into the picture or has any say. No notice, either public or private, is required by the Act to be given to any one whether a neighbour or a citizen living within the limits of Board. Municipal Boards are corporations and have as their members elected re presentatives of citizens residing within their limits who are expected, while sanctioning plans for proposed constructions, to ensure that Bye-laws framed by them under Section 298 of the Act for the purposes of providing or maintaining the health, safety and convenience of their inhabitants are faith fully observed. Sub-section (4) of Section 180 itself provides that sanction of a plan deemed to have been given to a proposed work does not of the Act or of any bye-laws. A sanction given or deemed to have been given under Section 180 cannot beyond exempting the person to whom it is given or deemed to have been given from any penalty or consequence to which he would other wise be liable under Sections 185, 186 or 222, confer or extinguish any right or disability, or operate as an estoppel or admission, or affect any title to property or have any other legal effect whatsoever. Section 318 (1) gives a right to any person aggrieved by an order or direction made by a Board under powers conferred upon it by Section 180 (1) to appeal within the period of time prescribed there to the appellate authorities mentioned in that provision. Under Section 180 (1) the board has power either to refuse to sanction any work of which notice has been given to it under Section 178 of the sanction it absolutely or subject to such directions as are enumerated in Clauses (a) and (b) thereof. If the Board has Accorded a sanction in accordance with the plan submitted, it is obvious that neither the Board nor the person applying for sanction can be aggrieved and the question of an appeal under Section 318 cannot arise. On the other hand if a sanction has been refused or has been granted subjection to modifications the person seeking sanction along can be aggrieved and would thus have a right of appeal under Section 318 of the Act. Section 320 also indicates that apart from the person applying for sanction in the event of refusal or grant of sanction subject to modification directed no third party has a right of appeal Sec empowers the appellate authority which has been described as a Court to award costs at its discretion. If the appeal has been preferred by the applicant for sanction under sub-section (2) of Section 320 costs can be awarded to the Board and is made recoverable as arrears of tax due from the applicant. On the other hand, if the aggrieved applicant's appeal has been allowed and cost have been awarded against the Board, the order can be enforced by the appellate authority in the manner prescribed in sub-section (3) of Section 320. Section 320 does not contemplate award of costs to any one other than the Board or the person applying for a sanction. This is indicated of an intention on the part of the legislature to confine the right of appeal only to a aggrieved by refusal of sanction by the Board for grant of sanction or subject to modifications directed. Section 322 authorize institution of Civil suits against orders or directions given in an appeal under Section 318 of the Act. Thus if a resident of a municipality is aggrieved against grant of a sanction accorded under an appellate order passed under section 318 there is no bar to his institution a Civil suit for enforcement of any of his Civil rights which maybe affected. We may mention here that the mere fact that a municipal Board has by oversight or mistake granted a section for construction in disregard of its own bye-laws cannot by itself provide a cause for a Civil action to any inhabitant residing within the area of a Board. He will have to allege and prove that as a result of sanction granted by the Board in violation bye-laws, some Civil right of his own is likely to be jeopardised. For the reasons given above our conclusion is that the by respondent No. was not maintainable and we consequently petition and quash the impugned order dated 30th March respondent No. 1. The petitioner shall be entitled to his costs. .