WPMS/1737/2007 of AJAY NAGPAL Vs COLLECTOR/D.M. NAINITAL AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 1737 of 2007

Ajay Nagpal.

Versus

Collector/District Magistrate,

Nainital & others.

…..Petitioner

...Respondents

Mr. Lalit Belwal, Advocate for the petitioner.

Mrs. Seema Sah, Brief Holder for the State of Uttarakhand. Mr. Lalit Sharma, Advocate for respondent nos. 3 to 5.

Dated: 31[st] July, 2017

Hon’ble V.K. Bist, J.

Petitioner has approached this Court seeking the following relief:

“a) Issue writ, order or direction in the nature of certiorari quashing the notice dated 29.03.2007 issued by the respondent no. 2 and also whole proceedings initiated by the Respondent No. 1 on the application of the Respondent No. 3 to 5.”

2. Briefly put, the case of the petitioner, as narrated in the writ petition, is as follows:

Late Sri Yashpal Nagpal, father of the petitioner, was the partner of M/s Swami Dass Arjun Dass. On 21.02.1992, the said firm was dissolved and, in the year 1995-96, new building was constructed known as Hotel Nagpal Tower “hereinafter referred to as “the property”. Thereafter, on the basis of the family settlement arrived at by the parties, the petitioner became the owner of the property and afterwards memorandum of family settlement was also reduced in writing. Thereafter, the petitioner applied for mutation in the Nagar Palika records, in which proceedings, the

notices were sent and served to the respondent no.3 to 5 and, as the proceedings for mutation were well within their knowledge, as such, no objection was filed by them. The Nagar Palika, Haldwani cum Kathgodam, District Nainital vide its resolution no. 14 dated 13.05.2003, allowed the mutation application of the petitioner and the petitioner received letter dated 20.05.2003 from the Nagar Palika in respect to this information. It is alleged that, in the influence of some relatives, who were not interested in the peaceful manner of settlement and to harm the reputation of the family, after more than two years, vide application dated 21.07.2005, the respondent nos.3 to 5 moved an application to Nagar Palika for mutation of the property in their name. The Nagar Palika passed an order on 21.07.2005 on the application of the respondent nos.3 to 5 that the parties may get decided the issue of title of the property by the competent court and the Nagar Palika will follow the judgment passed therein. According to the petitioner, again in the year 2007, the respondent nos.3 to 5 again moved an application before the respondent No.1 with prayer that their names may also be recorded as owner of the property. On that application, the respondent no.1 has directed the respondent no.2 to enquire into the matter and initiate inquiry. Thereafter, on 29.03.2007, show cause notice has been issued to the petitioner by the City Magistrate, Haldwani. Hence, this writ petition.

3. Learned counsel for the petitioner submitted that since the name of the petitioner has already been mutated, the remedy available to the party aggrieved

against the order of mutation, Appeal lies under Section 160 of the Uttar Pradesh Municipalities Act; but, the respondent nos. 3 to 5 did not file any Appeal against the said order of mutation. He submitted that respondent no. 1 has no power or authority on administrative side to sit above the judicial or quasi-judicial function of any court or authority and the act and conduct of the respondent No.1 is wholly infringement into the quasi-judicial function of the Chief Judicial Magistrate, who alone has been empowered to hear the Appeal against the orders passed by the Nagar Palika and, thus, the orders passed by the respondent no. 1, on the application of the respondent nos. 3 to 5, bypassing the process of law in an illegal and arbitrary manner, is wholly without jurisdiction and, thus, liable to be quashed. The Chief Judicial Magistrate has been empowered by the State Government to hear the Appeals to be filed under Section 160 of the Uttar Pradesh Municipalities Act, 1916. He submitted that respondent no. 1 has exercised jurisdiction not vested in him. In order to buttress his argument, learned counsel for the petitioner relied upon the judgment of the Hon’ble Apex Court in the matter of Chief of the Army Staff and others vs. Major Dharam Pal Kukrety, reported in AIR 1985 SC 703, wherein the Court has held that if show cause notice has been issued without jurisdiction, in that event, the said show cause notice can be quashed by the High Court. Paragraph no. 5 of the said judgment reads as under:

“5. The same contentions, as were raised before the High Court, were taken before us

at the hearing of this appeal. We will first deal with the appellants’ preliminary objection that the respondent’s writ petition was not maintainable as being premature. It was the respondent’s case that the Chief of the Army Staff had no jurisdiction to issue the impugned show-cause notice after he had been again found not guilty by the court-martial on revision. The said notice expressly stated that the Chief of the Army Staff was of the opinion that the respondent’s misconduct as disclosed in the proceedings rendered his further retention in service undesirable and asked him to submit his explanation and defence, if any, to the charges made against him. If the respondent’s contention with respect to the jurisdiction of the Chief of the Army Staff to issue the said notice were correct, the respondent was certainly exposed to the jeopardy of having his explanation and defence rejected and he being removed or dismissed from services. Were the said notice issued without jurisdiction, the respondent would have then suffered grave, prejudicial injury by an act which was without jurisdiction. Where the threat of prejudicial action is wholly without jurisdiction, person cannot be asked to wait for the injury to be caused to him before seeking the court’s protection. If, on the other hand, the Chief of the Army Staff had the power in law to issue the said notice, it would not be open to the respondent to aproach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ petition could be said to be premature. This was, however, not contention which could have been decided at the threshold until the court had come to finding with respect to the jurisdiction of the Chief of the Army Staff to issue the impugned notice. Having held that the impugned notice was issued without any jurisdiction, the High Court was right in further holding that the respondent’s writ

petition was not premature and was maintainable.”

4. Learned Brief Holder for the State of Uttarakhand would submit that, in fact, on the complaint made by the respondent nos. 3 to 5, the District Magistrate, Nainital directed the City Magistrate, Haldwani to inquire into the matter. She admitted the fact that against the order of mutation, Appeal lies under Section 160 of the Uttar Pradesh Municipalities Act.

5. Learned counsel appearing for respondent nos. 3 to 5 raised preliminary objection regarding maintainability of the writ petition. He submitted that the writ petition filed against the show cause notice is not maintainable. He submitted that, by the order impugned, the petitioner has only been informed that matter is being inquired by the City Magistrate, Haldwani and there was no need for the petitioner to approach this Court and to file this writ petition. He referred to Section 34 of the Uttar Pradesh Municipalities Act and submitted that the said section empowers the District Magistrate to prohibit execution or further execution of resolution or order of board and, therefore, the impugned show cause notice is valid notice.

6. I have considered the submission of learned counsel for the parties and have perused the papers available on record. Section 160 of the Uttar Pradesh Municipalities Act provides that an Appeal against the

mutation order can be filed. Section 160 of the Uttar Pradesh Municipalities Act is being reproduced below:

“160. Appeals relating to taxation.-(1) In the case of tax assessed upon the annual value of buildings or lands or both an appeal against an order passed under sub-section (3) of Section 143 or under sub-section (3) of Section 147, and, in the case of any other tax, an appeal against an assessment, or any alteration of an assessment, may be made the District Magistrate or to such other officer as may be empowered by the [State Government] in this behalf.

7. Therefore, the argument of learned counsel for the petitioner has force that remedy available to the party aggrieved against the order of mutation is filing of Appeal under Section 160 of the Uttar Pradesh Municipalities Act. As far as submission of the learned counsel appearing for respondent nos. 3 to 5 that the District Magistrate has power under Section 34 of the Uttar Pradesh Municipalities Act is concerned, I am of the view that Section 34 of the Uttar Pradesh Municipalities Act does not give power to the District Magistrate in the matter of mutation. Section 34 of the Uttar Pradesh Municipalities Act provides power of the State Government or the Prescribed Authority or the District Magistrate to prohibit execution or further execution of resolution or order. It does not give any power to the District Magistrate to pass order against the order passed by the Nagar Palika on mutation.

8. I am of the firm view that the proceeding initiated by the District Magistrate against the order of mutation is without jurisdiction. Consequently, the

writ petition is allowed and the impugned notice dated 29.03.2007 issued by the respondent no. 2 is hereby quashed. However, respondent nos. 3 to 5 would be at liberty to approach the competent Court under Section 160 of the Uttar Pradesh Municipalities Act. In case Appeal under Section 160 of the Uttar Pradesh Municipalities Act is filed, the Court, after affording opportunity of hearing to both the parties, will decide the Appeal in accordance with law. Needless to say that the petitioner will get benefit of the period spent during the pendency of this writ petition.

Arpan

(V.K. Bist, J.) 31.07.2017