DEO NATH Vs. CITY BOARD, SHAHJAHANPUR AND OTHERS

JUDGEMENT

(1.) THIS is a writ petition praying for a writ of mandamus commanding the respondents not to demolish the peti­tioner's shop No. 89, situate in Mohalla Taju Khel in the city of Shahjahanpur.

(2.) THE allegations made by the petitioner are that he is the owner of the aforesaid shop which was a 'Pucca' construction, built by him long ago on the basis of a plan duly sanctioned by respondent No. 1, namely, the City Board, Shahjahanpur. The shop was thereafter as­sessed by the Board for purposes of House Tax and Water Tax and the petitioner had been regularly paying taxes to the City Board. It is alleged that some officials of the City Board, however, recently arrived on the spot and threatened that in case the aforesaid construc­tion was not dismantled by the petitioner himself, it would be got demolished by them at the petitioner's cost. It was in these circum­stances that the petitioner filed the present writ petition Counter affidavits have been filed, both on behalf of the District Magistrate, Shahjahanpur, who is arrayed as respondent No. 2 and the City Board, Shahjahanpur, which is arrayed as respondent No. 1. The main allegations in the counter affidavit filed on behalf of the City Board are that he petitioner was asked by its officials to remove the encroachment failing which, he was told, they would be removed by the Board itself. It is, however, explicitly stated in the counter affidavit of the City Board that the Board was intending to remove the Chabutra only which had been made by the petitioner on Muni­cipal land in violation of the sanction and was, therefore, an encroach­ment.

(3.) ON the other hand, Sri Asif Ansari representing the City Board, Shohjahanpur before us submits that a written notice was not requir­ed under Section 211 of the Act and an oral notice was sufficient com­pliance of the provisions of law. As already observed, admittedly there was no written notice. According to Sri Ansari the action taken by the officials of respondent No. 1 on the spot unmistakably amounted to an oral notice to the petitioner, apprising him of the action contemplated to be taken against him by the Board and that was sufficient. The answer to the above question would depend on an interpretation of the provisions of Section 211 and other connected provisions of the Act indicating the powers of the Board with regard to these matters and the safeguards intended to be provided by the Act to the persons against whom action for removal of encroachment or projections etc. may be taken. Learned counsel for the respondents drew our attention to Sec­tion 186 of the Act in which according to him the Legislature had advisedly used a different language. This section reads as under: