Back
IN THE HIGH COURT OF ALLAHABAD
H.N. KAPOOR, J
Afaq Rasool and Another - Appellant
Versus
The Nagar Mahapalika and Others - Respondent
S.A. No. 3035 of 1967
Decided on : 08-09-1977
MUNICIPALITIES ACT - BYE-LAWS - ENCROACHMENTS ON NAZUL LAND - REMOVAL - WAIVER - OFFER OF LEASE - ACCEPTANCE - TIME LIMIT - CONDONATION.
Fact of the Case:
The Plaintiff, Ishtiaq Rasool, purchased a house with appurtenant nazul land in 1944. The Municipal Board issued temporary permits for the occupation of the land, which were renewed from time to time. In 1961, the Nagar Mahapalika issued notices to the Plaintiff, demanding payment of permit fees and threatening to remove the encroachments on the land. The Plaintiff filed a suit challenging the notices, claiming that the land was not nazul land and that the Municipal Board had granted a license for the occupation of the land. The trial court decreed the Plaintiff's suit, but the lower appellate court reversed the decision, holding that the land was nazul land and that the notices were validly issued.
Finding of the Court:
The High Court held that the bye-laws framed under the Municipalities Act clearly prohibited the occupation of nazul land without permission and that any structures made on such land after the permission had been withdrawn would be treated as encroachments and could be removed. The Court also held that there was no waiver of the notices issued by the Nagar Mahapalika, as the Plaintiff had not expressly or impliedly consented to the offer of a lease made by the Nagar Mahapalika.
Issues: 1. Whether the bye-laws framed under the Municipalities Act prohibited the occupation of nazul land without permission and whether structures made on such land after the permission had been withdrawn could be treated as encroachments and removed? 2. Whether there was a waiver of the notices issued by the Nagar Mahapalika?
Ratio Decidendi: 1. The Court held that the bye-laws framed under the Municipalities Act clearly prohibited the occupation of nazul land without permission and that any structures made on such land after the permission had been withdrawn would be treated as encroachments and could be removed. The Court relied on Bye-Law No. 1(c) and (d) framed u/s 298(2) List I-J(c) of the U.P. Municipalities Act, which stated that no person shall build upon, erect any structure, do anything upon or occupy in any manner any road, patri, street or place situated within the municipality and being the property of the Crown or of the Board or being under the control of the Board, or continue to do so after such permission has ceased to be in force or has been withdrawn. 2. The Court held that there was no waiver of the notices issued by the Nagar Mahapalika, as the Plaintiff had not expressly or impliedly consented to the offer of a lease made by the Nagar Mahapalika. The Court relied on Section 113 of the Transfer of Property Act, which provides that “a notice given u/s 111(h) is waived with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.”
Final Decision: The High Court dismissed the appeal, subject to the observation that the Nagar Mahapalika should still be prepared to act in accordance with its offer dated 1-7-1967 in case it had now been accepted by the Plaintiff Appellants.
H.N. Kapoor, J.
This is an appeal against the decree and judgment dated 21-10-1967 of 4th Additional Civil Judge, Kanpur, in Civil Appeal No. 16 of 1967 connected with Civil Appeal No. 88 of 1967 reversing the judgment of the Third Additional Munsif, Kanpur, dated 16-11-1966, in original suit No. 1212 of 1961 by which the Plaintiff's suit for a declaration that notices dated 30-9-1961 and 1-9-1961 issued by Nagar Mahapalika were illegal, arbitrary and void and not enforceable was decreed. Permanent injunction was also granted restraining the Defendants from giving effect to the said notices.
2. The facts giving rise to this appeal breilly stated are as follows:
House No. 89/164-166 was originally owned by one Suraj Narain. It was purchased in 1944 by Ishtiaq Rasool, original Plaintiff who died during the pendency of the suit. There was some land appurtenant to this house, which was nazul land. Its area was given differently. Now the dispute is with regard to the 127 sq. yards and 7 sq. ft. of that land. It appears that Sohan Lal had some temporary permit from the Municipal Board for constructing house on that land. That had expired as appears from the notice dated 2-5-1938 given by the Municipal Board to Suraj Narain. Suraj Narain had again applied on 27-7-1939 for compounding the matter and issuing fresh permit. It may be stated here that this nazul land, was clearly shown in the boundary of the house which was sold to Ishtiaq Rasool. After that house was purchased by Ishtiaq Rasool, the Municipal Board sent a notice dated 14-5-1953 stating that Ishtiaq Rasool too might continue on the basis of temporary permit if he paid fee at the rate of 4/- per sq. yard for the time being. The fee was demanded from 1944. It appears that he did not take any action. Another notice dated 11-7-1955 (Ex. 5) was then sent to him demanding fees of Rs. 2307/10/- for the period from 1-4-1944 to 31-3-1955 and also to show cause why action be not taken to remove his occupation from the land failing which action provided under the law was to be taken. A detailed notice was then sent on 11-11-1957 (Ex. 6) demanding total amount of Rs. 2439.00 as temporary permit fee. He paid some amount and made representation. On the basis of that representation a letter dated 8-3-1958 (paper No. 91, Ka-1) was sent to him snowing that after adjusting the amount already paid, a sum of Rs. 130/13/6 was due to him towards permit fee till 31-3-1958. He paid this amount. It appears that he received some more demand notices. Ex. 8 is one such notice dated 13-3-1959 demanding permit fee of Rs. 19/8/- for the years 1958-59. A money order coupon which is on the record (Ex. 18) shows that a sum of Rs. 19.50 was sent but it was refused. It does not bear the date and so it cannot be said whether this money order was sent in pursuance of that notice. The Municipal Board then sent a demand notice dated 30-6-1969 (Ex. 9) for Rs. 12,122/12/ as temporary permit fee for the period from 1954 to 1960. A corrected notice dated 24-8-1959 (Ex. 10) was sent demanding Rs. 11,990/2/- for the period from 1-4-1954 to 31-3-1960. The Plaintiff made representation. He was then informed to apply for lease of Nazul land which was in his occupation. The matter was finally settled by letter No. 69/N/318/L, dated 16-4-1960 (Ex.12) sent by the Nazul Adhikari according to which the land was to be transferred on lease to Plaintiff on payment at the rate of Rs. 40.00 per sq. yard which was 5% of the market rate. This payment was to be made for period from 1-10-1953 to 31-3-1960. The total permit fee of Rs. 202/82 already deposited was to be adjusted. The Plaintiff was therefore required to deposit the balance of Rs. 1462.32 for granting lease. The Plaintiff, however, did not accept this offer. The Nagar Mahapalika, then issued the impugned notice dated 30-6-1961 (Ex. A 12) purporting to be issued u/s 298(2), List I-J(c) of the Municipalities Act read with Section 577 of the U.P. Nagar Mahapalika Adh
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
