SURAJ PRASAD UPADHYA Vs. C.M.M. VIII

JUDGEMENT

(1.) IN case No. 67 of 1986, Munhi Devi v. Suraj Prasad Upadhya, under Section 21 of Act No. XIII of 1972, pending before the VIIIth Additional Chief Metropolitan Magistrate, Kanpur (Prescribed Authority, Kanpur Nagar) the petitioner Figures as opposite party. It appears that on 13 -4 -1988, the Prescribed Authority passed an order appointing an Advocate -Commissioner to inspect the disputed premises. The Advocate -Commissioner submitted his report 34 -C. The petitioner objected to the reception of the report of the Advocate -Commissioner on record on the ground that the Commission could not be issued and the inspection by the Advocate -Commissioner was contrary to the provisions of the U.P. Act No. XIII of 1972 and the rules made thereunder. The learned Prescribed Authority, rejecting the objection of the petitioner, passed an order dated 22 -10 -1990 direction report of the Commissioner to be brought on the record, The two orders of the Prescribed Authority dated 13 -4 -1988 and 22 -10 -1990. appointing the Commissioner and directing his report to be brought on record, respectively, are under challenge in the instant writ petition.

(2.) SRI A.I. Naqvi, the learned Counsel for the petitioner, contends before this Court that the learned Prescribed Authority acted in contravention of Rule 27 of the Rules made under the U.P. Act No. XIII of 1972, in as much as the said rule authorised inspection only by the District Magistrate, the Prescribed Authority or the appellate or revising authority and not by the Advocate -Commissioner. Further contention of the learned Counsel is that inspection could not have been done without two days' notice to the petitioner or his Counsel. These contentions of the learned Counsel have been effectively met by the Prescribed Authority on the basis of the provisions contained in Section 34 read with Rule 22(f) and clause (a) of proviso to sub -rule (2) of Rule 27. The reliance placed by the Prescribed Authority upon the aforesaid provisions, in the opinion of this Court, was not misplaced.

(3.) SRI Naqvi, learned Counsel for the petitioner, apprehends that in case the impugned orders go unchallenged, the petitioner may not be allowed to question their legality before higher forum. The apprehension of Sri Naqvi is wholly unfounded. The effect of the impugned orders is at best, admission of certain inadmissible evidence on record. Such action of the trial Court shall always be open to challenge and scrutiny by the higher Court hearing appeal. For the foregoing reasons, the Court is clearly of the opinion that it is not a fit case for interference under Article 226 of the Constitution of India. The petition deserves to be dismissed summarily. It is ordered accordingly.