JAGDISH LAL Vs. MUNICIPAL BOARD BAHRAICH

JUDGEMENT

(1.) THIS petition under Art. 226 of the Constitution of India has been filed by JagdishLal. The contention is that he is owner of a house situate in the city of Bahraich. The house of Opposite Party No. 2 Hari Nath is situate just to the south of this house. After purchase the petitioner claims to have submitted a plan to add two rooms to the house. This plan, it is cont ended, was sanctioned by the Municipal Board by resolution dated 25-9-1969 (An-nexure 1 to the writ petition). After the resolution opposite party no. 2 filed an ap peal on 3-10-1969 before the District Mag istrate, Bahraich under section 318 of the U. P. Municipalities Act and also obtained an order staying operation of the resolution dated 25-9-1969. This appeal was dismissed in default of opposite party by the District Magistrate on 6-12-1969 (vide Annexure 2 to the writ petition). After dismissal of the appeal opposite party no. 2 filed a review application purporting to be under section 321 of the U. P. Municipalities Act (herein after called the Act) before the District Magistrate, Bahraich, on 6-12-1969 which was also dismissed by the District Magistrate on 17-4-1970 due to the absence of Opposite Party No. 2 (vide Annexure 3 to the writ petition). The same day Opposite Party No. 2 filed another review application be fore the same authority and obtained an other stay order. This application for re view was allowed by the District Magistrate by an order dated 3-6-1970 after hearing both the parties and it was directed that the appeal be heard on merits (Annexure 4 to the writ petition). The petitioner feels ag grieved from the order dated 3-6-1970 of which Annexure 4 is a copy and challenges the same on the ground mainly that the Dist rict Magistrate had no jurisdiction to set aside the order of dismissal of the appeal dated 6-12-1969 under the proviso to Sec tion 321 of the Act after expiry of three months and, therefore, questions the validity of the order dated 3-6-1970. It is also urged that the District Magistrate had no jurisdiction to set aside the order of 6-12-1969 and to restore the appeal to it original number. There is also a ground that the resolution of the Municipal Board having been implemented inasmuch certain constructions had already been made by Union of India T. 8. S. Syndicate the petitioner after expiry of three months from the date of dismissal of the first appli cation for review, the District Magistrate had no jurisdiction to hear the appeal filed by Opposite Party No. 2. On these grounds the petitioner prays for a writ of certiorari quashing the order of the District Magistrate dated 3-6-1970 (Annexure 4).

(2.) THE petition has been contested by Opposite Party No. 2 who has filed a counter-affidavit. The opposite party admits that sanction for construction was granted by the Municipal Board to the petitioner but claims that the land on which the Board had permitted construction belonged to Opposite Party No. 2 and the sanction was wrongly granted. It is admitted that the opposite party had filed an appeal before the Dist rict Magistrate, Bahraich, against the sanc tion granted by the Board and the same hav ing been dismissed in default the opposite party moved an application for review. It is further admitted that the review application was also dismissed in default and that a second application for review had been moved which was ultimately allowed by the impugned order.

(3.) IT appears from Section 321 above that the power of review is conferred the appellate authority under the proviso to Section 321. But there is time-limit for the exercise of this power, time-limit being three months. It is further clear that this limitation of three months has to be counted "from the date of his original order" from which it follows that the period of three months for exercise of the power of review must be counted from 6-12-1969 on which the appeal was dismissed in default. Not only was the order on the first application for review (Annexure 3) passed beyond this period of three months counted from the date of dismissal of the appeal in default, but the order on the second application for review was also passed long after this period of limitation. The submission, therefore, that under the proviso to Section 321 of the Act the appellate court, in this case the Dist rict Magistrate Behraich, had no jurisdiction to pass any orders on the application for re view dated 17-4-1970 is perfectly sound and valid. Apart from this the order contained in Annexure 4 is assailable also on the ground that it cannot be said to have been passed in exercise of power of review al though avowedly the second application was treated by the District Magistrate as appli cation for review as distinct from an appli cation for restoration. The power of review on general principles should be exercised when there is some mistake or error appa rent on the face of the record or when there is any other sufficient reason. The District Magistrate did not state any suffi cient reasons for exercising power. On all considerations I uphold the conten tion of learned counsel for the petitioner that the District Magistrate had no jurisdiction to set aside the order dated 6-12-1969 after expiry of three months' period i.e., on 3-6-1970. To this one might add that by the impugned order he did not set aside the order passed on the first application for re view on 17-4-1970 nor restored the earlier application for review. It is difficult to see how the order on the first application for review remaining intact, another order could be passed on the second application for re view. Upon all these considerations the im pugned order of the District Magistrate dated 3-6- 1970, of which Annexure 4 to the writ petition is a copy, is held illegal and, therefore, liable to be quashed.