SHRAVANLAL Vs. PRESIDENT MUNICIPAL COMMITTEE KHACHROD

JUDGEMENT

(1.) IN this petition by one of the residents of Khachrod which is a class III municipality the prayer is that the appellate order of the Collector, Ujjain made under section 308 of the M.P. Municipalities Act, 1961. cancelling the permission granted to the petitioner for putting up a certain construction should be quashed by an appropriate writ or order and the permission granted by the president of the municipality under section 187 should be revived. The only material questions are (i) whether the Collector was competent to entertain an appeal by respondent No. 4 because of his being a 'person aggrieved" ; (ii) secondly, whether there was any defect in the manner of presenting the appeal and the defect was of that kind as should be noticed by this Court in a writ proceeding as having occasioned the failure of justice ; (ii) thirdly, whether the Collector in making the appellate order took into account any extraneous fact or circumstance and that extraneous fact or circumstance has vitiated the entire order.

(2.) THE facts leading to this petition are the following : In one of the streets of this town - which according to the petitioner is not a very busy one we have the houses of the petitioner and not far away the houses of respondent No. 4. From the order of the president of the municipality granting the permission, it appears that the petitioner on the one hand and the respondent No. 4 on the other have been members of opposing factions in what may be called the municipal politics or squables, and while the outgoing president Shri Nigam has been described as a partisan of respondent No. 4, the president who has granted the permission has by the very trend of the order given indication of being a partisan of the petitioner. THE whole thing is unfortunate, the result was while the petitioner had failed in getting the permission to put up his structure in the manner he wanted, on two previous occasions when there was somebody else in the chair of the municipal president he got it on the third occasion from the present president. THE president's own order is a speaking order and contains a good deal of matter that is really irrelevant to the subject-matter properly noticeable by him while examining the prayer for permission under section 187 of the Municipalities Act. Anyway, the prayer having been granted the respondent No. 4 describing himself as a person aggrieved sought and obtained leave from the Collector of the District at Ujjain to file his appeal under section 308 of the Act. THE Collector having heard the parties decided that the president had allowed his order to be coloured by a good deal of extraneous material and further that in the interest of public convenience and safety the permission should be cancelled. Apropos of the president's order holding that the land on which the petitioner had sought permission to build was his property the Collector observed that the materials were quite insufficient and there was no evidence that it belonged to the petitioner. But the real ground on which the appeal has been allowed is contained in the operative part of the Collector's order, and is to the effect that to permit the petitioner to build in the manner he wanted was to narrow down a public lane of 10 feet width to one of 4 feet, and thereby inconvenience the residents of that locality in their movements to their and their neighbours' houses. THE petitioner has come up with this petition urging that the respondent No. 4 had no locus standi to file the appeal and that appeal itself was defective because it had not been accompanied by a copy of the order appealed against and further that the Collector had misguided himself with certain notions about title to the strip of land on which building permission had been sought. THEse points have been canvassed at some length and with citation of case-law.

(3.) THESE appellate proceedings before the Collector like all proceedings of the kind should have been initiated by the presentation of a memorandum accompanied by a certified copy of the order which the appellant was seeking to assail. This is clear enough and it would be open to the appellate authority to reject the appeal if unaccompanied by such an order or to give the appellant sufficient time either to produce the copy or to explain why it was not being filed. In the instant case the respondent No. 4 filing the appeal before the Collector did not attach to his memorandum a copy of the order of the president. His explanation was that he had applied for it, paid the appropriate fees and was still refused. It is certainly conceivable that having persisted and waited for some time the respondent No. 4 could have got his copy from the office of the municipality and could have filed it, the question being only one of time. However, his explanation being tacitly accepted, the Collector proceeded to deal with the appeal, sent for the record, heard the parties, and passed his order. In other words, the omission on the part of the respondent No. 4 to file copy of the order did not in the least manner lead to any miscarriage of justice or incompleteness of the hearing before the appellate tribunal. The present proceeding is one in exercise of extraordinary jurisdiction where it is not every defect or omission that calls for notice by us. We may in our discretion refuse to notice some omissions though in the event of our being a regular appellate authority under the Civil Procedure Code it may be obligatory for us to notice an omission by a party for what it is worth. The criterion for noticing an omission of a mechanical act on the part of a litigant" is simple : Has that omission led to a miscarriage of justice by hampering either the lower tribunal or any of the parties before it in either doing justice or presenting their case ? If there has been no such hampering, in proceedings under Article 226 of the Constitution we may not notice any omission. The omission on the part of the respondent No. 4 to file copy of the president's order before the Collector is of this kind. The Collector did not find the least difficulty in disposing of the appeal justly and completely because the entire record including the president's order was before him. Nor did the petitioner himself find any difficulty in presenting his case; and as for the respondent he does not even say he had any difficulty. Thus, whether or not the respondent's explanation of his failure to file a copy of the president's order is satisfactory, his omission to file it before the Collector is not a defect that calls for our notice. Question (iii) :