RAJA RAM Vs. MUNICIPAL BOARD RATH

JUDGEMENT

(1.) Dr. R. Dwivedi, Advocate claiming to have been engag ed by petitioner Raja Ram and 131 other inhabitants of town of Rath who, aggrieved by the demand for payment of projection fees raised by Municipal Board, pray that after quashing the Bye-law for the purpose framed by the Municipal Board it be restrained from realizing any projection fees from them, presented this petition under Article 226 of the Constitution before |this Court on 21st January, 1980. When the petition came up for hearing, learned counsel appearing for the contesting respondents raised an objection that as in this case there is no document in writing (Vakalatnama) indicating that various petitioners had engaged Dr. R. Dwivedi, Advocate to represent them and to act on their behalf, Dr. Dwivedi was not competent to present this petition, which deserves to be dismis sed as incompetent. Dr. Dwivedi did not dispute that before he could represent or act on behalf of the petitioners there had to be a document in writing signed by the petitioners appointing him to act on their behalf. He, however, contended that while presenting the writ petition he had filed such a document in writing (Vakalatnama); signed by all the petitioners which indicated that he had been engaged to represent them and to act on their behalf. There was thus no defect in presentation of the writ petition by him. It is settled practice in this State that whenever a person wants to appoint an Advocate, he fills in his own name as the person appointing the Advocate as also the name of the Advocate whom he appoints, in a printed form containing the term of such appointment. The form indicates the places where the person or persons appointing the Advocate, the witnesses in whose presence the ap pointment is being made, and the concerned Advocate who accepts the appoint ment are to append their signatures. In the case before us the authority to re present the petitioner filed by Dr. Dwivedi consists of a number of such printed forms pasted one after the other at the foot of the first form. Each such printed form contains following recital: @hindi and bears signatures of some of the petitioners and it is only in the printed form at the top that the space meant for indicating the persons engaging the Advocate has been filled in thus;- "raja Ram S/o. Mangali Prasad R/o. Mahalla Kot Bazar Rath Dis trict Hamirpur and 101 other Names and addresses are given with attach ed list," and that in the space meant for indicating the name of the Advocate who was being erg aged, the name of Dr. R. Dwivedi, Advocate had been mentioned. However, no list of 101 persons with their names and addresses, as mentioned in the form at the top was attached to it. Instead, we find that the present writ petition has been filed on behalf of as many as 132 parsons. In the remain ing forms pasted to the form at the top, spaces meant for the persons appointing the Advocate as also that for indicating the name of the Advocate sought to be engaged have been left blank. It is apparent that when a person signs a blank Vakalatnama form, without mentioning the name of the person whom he wants to appoint, it does not result in his appointing any particular person as his Advocate. Any subsequent filling in of the name of an Advocate in such a Vakalatnama form by a person other than the person signing the same would also not result in that Advocate being appointed by the person signing the Vakalatnama form. It, therefore, follows that so far as the persons who have signed various forms pasted one after at the foot of the first form, are concerned, they did not appoint Dr. Dwivedi or any other Advocate to represent them or to act on their behalf in this petition. Merely because these forms have been pasted one after the other at the foot of the first form, it did not either mean that the recital contained in the form at the top whereby the executants of that document purported to appoint. Dr. Dwivedi as their advocate became a part of the recital contained in remaining forms as well or that it resulted in Dr. Dwivedi being so appointed by the signatories of those forms. So far as the persons purporting to engage Dr. Dwivedi as their advocate, by the Vakalatnama at the top are concerned, they have, in that document been described as Paja Ram and 101 others whose name and addresses appeared in the attached list. But then no such list containing the names of 101 other per sons has in fact been attached to it. In the circumstances, it is not possible to find out as to apart from Raja Ram who else had engaged Dr. Dwivedi to act on his behalf. It is true that in the said Vakalatnama there are, apart from Raja Ram, signatures of four other persons, namely, that of Inait, Idu, Wahid Ahmad and Hemar Kumar, as well. It appears that various signatories to this document have signed it at random and not at the places meant for the signatures of the executants of the document, for example, signatures of Wahid Ahmad and Hemar Kumar appear at the place meant for the signatures of witnes ses who were expected to attest the signatures of the executants. Signatures of Raja Ram appears at the place where the counsel is expected to sign in token of accepting the engagement. The signature of Idu do not appear at the place meant to be signed by the executants which in the instant case is blank and instead it appears in the space in between the places meant for the signatures of the executants and the attesting witness. Undoubtedly Hemar Kumar is not one of the petitioners in the case. In the circumstances, merely because of existence of signatures of various persons on the Vakalatnama, it cannot be said that all of them intended to appoint Dr. Dwivedi as their Advocate. Since in the opening portion it has been mentioned that Raja Ram son of Mangali Prasad along with others was appointing Dr. Dwivedi Advocate as his counsel and his signatures appear on the Vakalatnama though at a wrong place, it may be taken that he had appointed Dr. Dwivedi to present this petition on his behalf However, as the names of 101 other persons who purported to engage Dr. Dwivedi as an Advocate to represent them is not ascertainable and as it is not clear whether Inait, Idue and Wahid Ahmad signed the said document as executants thereof or in some other capacity, it cannot be said that these three persons had also appointed Dr. Dwivedi to act on their behalf. In the circums tances it can at best be said that Dr. Dwivedi had been appointed to act only on behalf of Raja Ram. In the case of Muhammad Alt Khan and others v. Jas Ram and others (I. L. R. XXXVI Alld. 46) it was held that where even by an over-sight the name of the Vakil who had filed the appeal had been omitted from the body of the Vakalatnama, the presenta tion of the appeal was incompetent Inasmuch as the name of Dr. Dwivedi does not find place in any of the Vakalatnamas accepting in the one at the top. Presentation of the petition on behalf of the executants of those Vakalatnamas wherein the name of Dr, Dwivedi does not appear, is incompetent. So far as the Vakalatnama on the top is concerned, we have already stated the reason why we consider that it was only Raja Ram who had authorized Dr. Dwivedi to act on his behalf and the present writ petition can be considered to have been validly presented only on his behalf. Dr. Dwivedi, learned counsel appearing for the petitioners, then prayed that he should be given an opportunity to remove the defect by filling his name in various Vakalatnamas as a counsel engaged by the executants thereof. It is true that in the cases of Wall Mohammad Khan v. Ishak Alt Khan and others, (A. I. R. 1931 Alld. p. 307) and Baldeo v. Dachhmi Narain and others (A. I. R. 1934 Alld. 810), it has been held that any such defect in a Vakalatnama is merely an irregularity which can, in the discretion of the Court, be allowed to be cured. But then the irregularity in the instant case can be cured only by the executants appearing before the Court and filing in the name of Dr. Dwivedi as the Advocate engaged by them in their respective Vakalatnamas. The irregularity cannot be cured by Dr. Dwivedi himself filling in his own name in various Vakalatnamas. It is for the executants or various Vakalatnamas and not for Dr. Dwivedi to indicate the person whom the executants proposed to appoint as their Advocate. Accordingly, the defect cannot be allowed to be cured in the manner suggested by Dr. Dwivedi. Dr. Dwivedi ad mits that all the petitioners who have signed various Vakalatnamas are not pre sent in Court and that he is not in a position to get the defect cured by them at this stage. Apart from the fact that requiring all the petitioners to appear before this Court will entail unnecessary delay in the hearing of the writ petition, it may also not be very convenient for all the petitioners to come to Allahabad for curing the said defect within a reasonable t ime. In the circumstances, we did not consider it proper to grant any time to Dr: Dwivedi to take steps for curing the defect in the Vakaltnamas and have proceeded to treat the present writ petition as being only on behalf of Raja Ram. On merits on the petition by Raja Ram, we find that notification dated 19th September, 1975 was published in the Uttar Pradesh Gazettee dated 11th October, 1975 notifying the ibye-laws, in respect of projections on municipal lands, framed by the Municipal Board Rath, as approved under Section 301 (2) of the U. P. Municipalities Act by the Commissioner, Jhansi Division, Jhansi. Rule 10 thereof provided for payment of projection fees in respect of the projections, as defined in the bye-laws, existing on various main roads within municipal limits of Rath. Subsequently on 29th November, 1979 the Municipal Board served notice demanding projection fees for the year 1979-80 amounting to Rs. 250/- on the the petitioner and requiring him to pay the same within fifteen days of the receipt thereof. It is not disputed that the pro jection in respect of which the demand had been raised existed from before com ing into force of the bye-laws notified vide notification dated 19th September, 1975. Learned counsel for the petitioner contends that under Section 298 (ii) (E) (c) of the U. P. Municipalities Act bye-laws can be framed only for regu lating the conditions on which the permission may be given under Section 209 for projection over streets and drains. According to him the ambit of the ex pression "regulate the conditions on which permission may be given" does not enable the Nagarpalika to levy any projection fee and as such the bye-law pro viding for the projection fee is invalid. While making this submission learned counsel has ignored the provisions contained in Section 293 (1) which specifically enable the Board to charge fees to be fixed by bye-laws for the use or occupation on a public street including that by allowing projections thereupon. There can, therefore, be no doubt that the U. P. Municipalities Act contemplates that apart from regulating the conditions on which permission may be given for setting up of projections over streets, bye-laws can also be framed for fixing the amount of fees payable in respect thereof. Learned counsel appearing for petitioner next submitted that a perusal of Section 293 and Section 298 (ii) (E) (c) would show that the Municipal Board can frame bye-laws for regulating and charging fees for such projections as they come into existence after coming into force of the bye-laws and that it has no jurisdiction to charge fees in respect of projections that existed from before com ing into force thereof This submission made by the learned counsel has to be rejected. Section 293 which authorizes charging of fees for projections over public streets lays down that the Board may charge fees for the use and occupation including that allowing projection on a public street. Under Section 211 of the U. P. Munici palities Act the Board has been given power to require the owner or occupier of any building to remove or to alter a projection or structure over handing, projec ting into or encroaching on a street. The only restriction that has been imposed on this right, by the proviso, is that in case the projection or the structure law fully existed on or before 10th day of March, 1900 the Municipal Board shall have to pay compensation for any damage caused by the removal or alteration thereof. In the case of Municipal Board, Kanauj v. Manohar Lal (A. I. R. (38) 1951 Alld. p. 867) a Full Bench of this Court is paragraph 14 of the judgment observed thus:- "in the case of existing projections which can be ordered to be removed by notice under Section 211, Municipalities Act, the question may still arise whether they should be allowed to continue or be removed. An applica tion may be made for the making of a new projection and an application may also be made for allowing an already existing projection to stand. In both the cases the board may allow the use or occupation of the munici pal property-in one case by allowing a new projection to be made and in the other case by allowing the old one to stand. In either case the board will be allowed to charge fees for allowing the use and occupation of muni cipal property under Section 293, Municipalities Act. There appears to be no reason why the expression "allows the use or occupation whether by allow ing projection thereon or otherwise" should be confined to new projections on by or to such continued use or occupation of municipal land which may be permitted in future. The expression can very well be applied to cases of existing projections or to continuance in future to such use or occupation as had commenced in the past. " and held that the Municipalities Act authorizes the Municipal Board to charge fee in respect of projections over municipal property that existed from before coming into force of the bye-Jaws imposing such a fee as well, in case the person who made the projection has not acquired any title to the property over which the projection hangs and he desires the Municipal Board to allow the projection to continue after promulgation of the bye-laws. In the instant case there is absolutely no material in the writ petition to show that petitioner Raja Ram has acquired any right or title to the property over which the projection, in respect of which the Municipal Board is demanding the fees, stands. It is also clear that the petitioner wants his projection to continue and is not prepared to de molish the same. In the circumstances, as laid down by the Full Bench, there can be no objection to the Municipal Board charging the fees fop sue h a projec tion under a by-law framed by it. In the end, learned counsel for the petitioner invited our attention to Sec tion 301 (2) of the Municipalities Act, which lays down that the power of the Board to make-bye 1-w shall be subject to the condition that they are made after previous publication and are not to take effect until they have been con firmed by the State Government and are published in the Official Gazette. In the instant case the bye-laws have been published in the gazette only after being confirmed by the Commissioner of Jhansi Division and not by the State Government. The bye-laws have accordingly not yet validly come into force and no fee there under can be charged by the Municipal Board. We find no substance in this submission, Section 327 of the U. P. Muni cipalities Act lays down that the State Government may by notification delegate to the Prescribed Authority in respect of any specified municipality or municipalities within his or its jurisdiction one or more of the powers vested in it by this Act with the exception of powers detailed in Schedule 'vii'. Dr. Dwivedi did not dispute that Commissioner of Jhansi Division is the Prescribed Authority. He also did not contend that the power under Section 301 (2) to confirm bye-law is a power which is detailed in Schedule VII. It, therefore, follows that the power to confirm a bye-law under Section 301 can be delegated by the State Government to a Prescribed Authority. The respondents have, along with their counter-affidavit filed a copy of the notification dated November, 16, 1917 which provides that in exercise of powers conferred by Section 327 of United Provinces Municipalities Act 1916, the State Government has delegated to Commissioners of Divisions the power to confirm under sub-section (2) of Section 301 of the said Act by laws made by the Board or Municipalities within their respective Division of the framed by the Rath said Act bye-laws accordingly the bye-laws Municipal Board stand validly confirmed under Section 301 (2) of the U. P. Municipalities Act by the Commissioner Jhansi Division and cannot be said to be inoperative on this account. As, in our opinion, none of the submissions made by the learned counsel for the petitioner for questioning the right of Municipal Board Rath to realize the projection fees demanded from him has any substance, the petition fails and is dismissed. In the circumstances for the case we direct the parties to bear their own costs. .