Allahabad High Court
Mangla Prasad vs State Of U.P. And 2 Others on 18 August, 2023
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:166243 Court No. - 1 Case :- MATTERS UNDER ARTICLE 227 No. - 6996 of 2023 Petitioner :- Mangla Prasad Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Manish Dev Singh Counsel for Respondent :- C.S.C.,Sanjay Kumar Upadhyay Hon'ble Jayant Banerji,J.
Rejoinder affidavit filed today is taken on record.
Heard Sri Manish Dev Singh, learned counsel for the petitioner. Learned Standing Counsel appears for respondent nos. 1 and 2. The respondent no.3 is represented by Sri S.K. Upadhyay.
This petition has been filed seeking the following relief:-
"i. To set aside order dated 29.5.2023, passed by Chief Judicial Magistrate, Court no. 11, Jaunpur, in Appeal No. 06/2021 Mangla Prasad Vs. Nagar Palika Parishad, Jaunpur and others under Section 318 of U.P. Municipalities Act, 1916 (Annexure No.1 to the petition) whereby and whereunder application dated 13.3.2023 of petitioner herein was non-suited, on wholly erroneous exercise of jurisdiction."
It is stated by the learned counsel for the petitioner that a notice under Section 210/211 of the U.P. Municipalities Act, 1916 (hereinafter referred to as the Act) was issued to the petitioner for removal of unauthorized constructions allegedly raised by him over a drain of the Municipality. It is stated that against the aforesaid notice, an appeal was filed by him under Section 318 of the Act. In that appeal, an application dated 13.3.2023 was filed by the petitioner mentioning that certain relevant documents were missing in the record of the Municipality that was produced before the appellate authority. It is stated that the aforesaid application was cursorily rejected by the appellate authority solely on the ground that in Writ-C No. 36316 of 2022 by an order dated 29.11.2022, this court had directed to decide the appeal within a period of three months.
The contention is that the documents are relevant and material for purpose of adjudication of the appeal and, therefore, rejection of the application dated 13.3.2023 by the appellate authority is unjustified. Learned counsel for the petitioner has also stated that the given the presumption that is required to be drawn under Section 114 of the Indian Evidence Act, non-filing of the documents would be read against the Municipality.
Learned counsel for the respondents has vehemently opposed the writ petition and has stated that the sole purpose of the petitioner is to delay the decision of the appeal which has been directed to be decided by this Court within a period of three months by the order dated 29.11.2022. It is stated that the petitioner has illegally encroached upon the property of the Municipality and as such, notice under Section 211 of the Act is justified.
Having perused the record, it appears that earlier, the petitioner had approached this Court by filing Writ-C No. 14985 of 2020 (Mangla Prasad Sahu and another Vs. State of U.P. and others), in which the same notice under Section 210/211 of the Act, 1916 was challenged. This Court refused to interfere in the case by observing that as the title of the petitioners would have to be ascertained by taking evidence from the parties, it would be appropriate for the petitioners to institute a civil suit, if so advised. It was further observed in the order that otherwise also, the impugned notice itself states that if unauthorized possession is not removed then proceedings would be drawn as per law. Accordingly, the Court disposed of the petition by giving liberty to the petitioners to institute a suit or to contest the proceedings as may be advised.
It is pertinent to mention here that the notice under Section 210/211 of the Municipalities Act has not been enclosed in this petition.
The application of the petitioner dated 13.3.2023 has been enclosed as Annexure-8 to this petition. The application alleges that in the documents filed by the Municipality, several documents were not present and it was alleged that the Nagar Palika employees had deliberately not filed the document only to harm the appellant/petitioner. Therefore, it was prayed that the documents mentioned therein be summoned by the appellate court. By the order dated 29.5.2023, the application dated 13.3.2023 has been rejected and the parties were required to be present on 4.7.2023 for hearing.
It goes without saying that in the appeal that has been filed by the petitioner, it is for the petitioner to establish his right with regard to property, in respect of which notice under Section 210/211 has been issued by the authority. In case the documents are not produced by the Municipality, the appellate court shall consider the consequences in accordance with law.
No cause for interference is made out in the facts and circumstances of the case, particularly when the petitioner has not been able to establish whether any jurisdictional issue has arisen as a consequence of the impugned order dated 29.5.2023.
In view of the aforesaid, this petition is dismissed.
Order Date :- 18.8.2023 sfa/ (Jayant Banerji, J)