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2006 Supreme(UK) 229
2006 (2) U.D., 204
High Court of Uttaranchal
Rajesh Tandon, J.
Kiran Kumar Sahni and another- Petitioners
Vs.
Chief Judicial Magistrate, Nainital and others-Respondents
Writ Petition No. 375 (M/S) of 2004, And Writ Petition No. 982 (M/S) of 2004,
Decided on : 08-05-2006.
In Writ Petition No. 375 (M/S) of 2004 :Sri Manoj Tiwari, Advocate for the petitioners; learned. Standing Counsel for the respondent no. 1 and Sri J.C. Belwal, Advocate for the respondent no. 2.
In Writ Petition No. 982 (M/S) of 2004 :Sri Ashish Joshi, Advocate for the petitioner;
learned Standing Counsel for the respondent no. 1 and Sri J. C. Belwal, Advocate for the respondent no. 4.
The main legal point established in the judgment is the interpretation of the scope of appeal under Section 160 of the U.P. Municipalities Act and the availability of alternative remedies through a civil suit.
Headnote:
Certiorari - Municipal Board Lease Dispute - U.P. Municipalities Act, 1916, Section 143, Section 147 - The court discussed the provisions of Section 143 and Section 147 of the U.P. Municipalities Act, 1916, which relate to objections to entries in the list and the amendment and alteration of the list. The court interpreted the scope of appeal under Section 160 of the Act and referred to relevant case law to support its decision.
Fact of the Case:
The petitioners sought to quash an order passed by the Chief Judicial Magistrate, Nainital, related to the mutation of tenancy rights over two shops leased by the Municipal Board, Haldwani. The dispute arose from a transfer of tenancy rights and subsequent objections and appeals under the U.P. Municipalities Act.
Finding of the Court:
The court found that the appeal under Section 160 of the U.P. Municipalities Act was maintainable against the order deleting or entering the name in the municipal records. It also noted the pendency of a civil suit related to the same dispute and dismissed the writ petitions.
Issues: The issues involved the maintainability of the appeal under Section 160 of the U.P. Municipalities Act and the availability of alternative remedies through a civil suit.
Ratio Decidendi: The court's decision was based on the interpretation of the provisions of Section 143 and Section 147 of the U.P. Municipalities Act, as well as the applicability of relevant case law. It also considered the availability of alternative remedies through a civil suit.
Final Decision: The writ petitions were dismissed, and the court held that the appeal under Section 160 of the U.P. Municipalities Act was maintainable. It also noted the pendency of a civil suit related to the dispute.
By the present writ petitions, the petitioners have prayed for a writ of certiorari quashing the order dated 06-05-2004 passed by the Chief Judicial Magistrate, Nainital.
2. Briefly stated, Municipal Board, Haldwani leased out two shops bearing No. 381 and 382 at Mangal Parao in favour of Sri Inder Raj Sahni (respondent no.2) who is elder brother of petitioner no. 1 and real uncle of petitioner no. 2.
3. Sri Inder Raj Sahni transferred his tenancy rights over shop no. 382 in favour of Sri Jagmohan Lal Sahni (since deceased) (father of the petitioner no. 2) for a consideration of Rs. 15,000/- by means of transfer deed dated 06-05-1991. Another deed was executed on 0605-1991 in favour of Sri Kiran Kumar Sahni, whereby tenancy rights over shop no. 381 were transferred. In both the deeds, it was specifically mentioned that the transferee may get his name entered in municipal records as lessee.
4. In pursuance of the aforesaid transfer deeds, petitioners applied for entering their names in municipal records as lessee in respect of shops No. 381 and 382 and their applications were ultimately considered by the Marketing Committee of the Municipal Board in its meeting dated 20-05-2000 and decided to enter the name of the petitioners as lessee in municipal records.
5. Sri Inder Raj Sahni filed one suit on 12-08-2001 for permanent injunction, which was registered as Civil Suit No. 85 of 2001 in the Court of Civil Judge (Senior Division), Haldwani which is pending before the Additional District Judge, Haldwani. The relief sought in the said suit was that the order of mutation passed by Municipal Board in favour of the petitioners be declared illegal and the petitioners be restrained from taking possession of shops No. 381 and 382 situated at Mangal Parao, Haldwani. Subsequently, by way .of an amendment, further relief of ejectment was sought against the petitioners from shops No. 381 and 382 and the prayer for amendment was allowed by the trial Court on .15-04-2002.
6. Sri Inder Raj Sahni preferred appeal before the Chief Judicial Magistrate, Nainital under Section 160 U.P. Municipalities Act against the decision taken by Marketing Committee of Municipal Board on 20-05-2000, whereby the permission to change the name in the municipal records has been given.
7. Against the said appeal, the petitioners have moved an objection before the Chief Judicial Magistrate on 09-05-2002 stating that the appeal is not maintainable. The learned Chief Judicial Magistrate vide judgment and order dated 06-05-2004 allowed the appeal filed under Section 160 of the U.P. Municipalities Act.
8. Counsel for the petitioners Sri Manoj Tiwari has submitted that no appeal was maintainable under Section 160 of the U.P. Municipalities Act as the appeal lies only against the taxation and against the order passed U/s 143(3) of the U.P. Municipalities Act. Section 143(3)(c) relates to the objection of the entries in the list. Clause (c) aforesaid relates to the case any amendment necessary in accordance with state resolution to be made in the assessment list.
9. Section 143 of the U.P. Municipalities Act, 1916 is quoted below:-
"143. Objections to entries in list. - (1) The [municipality] shall at the same time give public notice Of a date, not less than one month thereafter, when it will proceed to consider the valuations and assessments entered therein, and in all cases in which any property is for the first time assessed or the assessment is increased, it shall also give notice thereof to the owner or occupier of the property, if known.
(2) All objections to valuations and assessments shall be made to the [municipality] before the date fixed in the notice, by application in writing stating the grounds on which the valuation and assessment are disputed, and all applications so made shall be registered in a book to be kept by the [Municipality] for the purpose.
(3) The [Municipality], or a committee empowered by delegation in this behalf, or an officer [or Government] or
