ORDER :- This petition under Art. 226 of the Constitution of India has been filed by Jagdish Lal. The contention is that he is owner of a house situate in the city of Bahraich. The house of Opposite Party No. 2 Hari Nath is situate just to the south of this house. After purchase the petitioner-claims to have submitted a plan to add two rooms to the house. This plan, it is contended, was sanctioned by the Municipal Board by resolution dated 25-9-1969 (Annexure 1 to the writ petition). After the resolution opposite party no. 2 filed an appeal on 3-10-1969 before the District Magistrate, Bahraich under section 318 of the U. P. Municipalities Act and also obtained an order staying operation of the resolution dated 25-9-1969. This appeal was dismissed in default of opposite party by the District Magistrate on 6-12-1969 (vide Annexure 2 to the writ petition). After dismissal of the appeal opposite party no. 2 filed a review application purporting to be under section 321 of the U. P. Municipalities Act (hereinafter called the Act) before the District Magistrate, Bahraich, on 6-12-1969 which was also dismissed by the District Magistrate on 17-4-1970 due to the absence of Opposite Party No. 2 (vide Annexure 3 to the writ petition). The same day Opposite Party No. 2 filed another review application before the same authority and obtained another stay order. This application for review was allowed by the District Magistrate by an order dated 3-6-1970 after hearing both the parties and it was directed that the appeal be heard on merits (Annexure 4 to the writ petition). The petitioner feels aggrieved from the order dated 3-6-1970 of which Annexure 4 is a copy, and challenges the same on the ground mainly that the District Magistrate had no jurisdiction to set aside the order of dismissal of the appeal dated 6-12-1969 under the proviso to Section 321 of the Act after expiry of three months and, therefore, questions the validity of the order dated 3-6-1970. It is also urged that the District Magistrate had no jurisdiction to set aside the order of 6-12-1969 and to restore the appeal to its original number. There is also a ground that the resolution of the Municipal Board having been implemented inasmuch as certain constructions had already been made by the petitioner after expiry of three months from the date of dismissal of the first application for review, the District Magistrate had no jurisdiction to hear the appeal filed by Opposite Party No. 2. On these grounds the petitioner prays for a writ of certiorari quashing the order of the District Magistrate dated 3-6-1970 (Annexure 4).

2. The petition has been contested by Opposite Party No. 2 who has filed a counter-affidavit. The opposite party admits that sanction for construction was granted by the Municipal Board to the petitioner but claims that the land on which the Board had permitted construction belonged to Opposite Party No. 2 and the sanction was wrongly granted. It is admitted that the opposite party had filed an appeal before the District Magistrate, Bahraich, against the sanction granted by the Board and the same having been dismissed in default the opposite party moved an application for review. It is further admitted that the review application was also dismissed in default and that a second application for review had been moved which was ultimately allowed by the impugned order.

3. The first and main submission of learned counsel for the petitioner in this case is that the order of the District Magistrate contained in Annexure 4 to the writ petition dated 3-6-1970 was passed without jurisdiction. Having heard learned counsel for the parties I am of the opinion that this contention is well-founded. It is an admitted fact that against the resolution of the Board sanctioning the plan submitted by the petitioner Opposite Party No. 2 filed an appeal before the District Magistrate, Bahraich, under Section 315 of the Act. Admittedly this appeal was dismissed by the District Magistra

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