JUDGMENT:

(per Hon’ble The Chief Justice Sri Raghvendra Singh Chauhan)

With the consent of the learned counsel for the parties, namely, Mr. T.A. Khan, the learned Senior Counsel for the appellants, Mr. Rajendra Singh Azad, the learned counsel for the private respondent, Mr. Mausin and, Mr. Nagesh Aggarwal, the learned counsel for respondent no.2, the Nagar Panchayat, Piran Kaliyar, this appeal is being decided at this stage itself.

2. The appellants have challenged the legality of the order dated 26.03.2021, passed by a learned Single Judge, in Writ Petition (M/S) No.773 of 2021, whereby the learned Single Judge had allowed the writ petition filed by the writ petitioner, Mr. Mausin, and had set-aside the advertisement dated 19.03.2021 issued by the Waqf Board.

3. For the sake and convenience, the parties shall be referred to as arrayed in the writ petition.

4. Briefly the facts of the case are that the petitioner, Mr. Mausin, claimed to be an Elected Ward Member of Ward No.2, Nagar Panchayat Piran Kaliyar. In order to safeguard the interest of the Nagar Panchayat, he had filed the writ petition, wherein he had challenged the advertisement dated 19.03.2021, issued by the Manager, Dargah Piran Kaliyar (respondent no.3 before the Writ Court). The advertisement was issued for inviting applications and tenders from various persons and firms for granting the contract for running the parking lot and Tehbazari (the area which is leased out for petty shops and petty commercial activities to be carried out by the people), which were scheduled to be constructed by respondent no.3. The petitioner was of the opinion that the parking lot and Tehbazari can be leased out only by the Nagar Panchayat. And, more importantly, the parking lot fees can be levied and collected only by the Nagar Panchayat. Therefore, the petitioner filed the writ petition challenging the legality of the advertisement dated 19.03.2021. The learned Single Judge, as mentioned hereinabove, allowed the writ petition, and quashed the advertisement dated 19.03.2021. Hence, the present appeal before this Court.

5. Mr. T.A. Khan, the learned Senior Counsel appearing for the appellants, (the respondent no.3 before the Writ Court) has raised the following contentions before this Court:-

Firstly, the subject property in question belongs to the Dargah, and is, thus, a part of the waqf property. The said land is neither vested in nor entrusted to the Nagar Panchayat, the respondent no.2.

Secondly, the learned Single Judge has erred in relying upon an interim order dated 05.04.2019, passed by a learned Division Bench of this Court, in Special Appeal No.267 of 2019, Nagar Panchayat Piran Kaliyar & another vs. State of Uttarakhand & others. The Special Appeal dealt with the advertisement issued by the Waqf Dargah Sabir Pak Piran Kaliyar, whereby the said Dargah wanted to lease out certain properties, some of which were public properties belonging to the Nagar Panchayat. Therefore, by interim order dated 05.04.2019, the learned Division Bench had prevented the Dargah from leasing out the said properties without the permission of the Nagar Panchayat. However, the said case of Nagar Panchayat Piran Kaliyar (supra) is distinguishable on the factual matrix itself.

Thirdly, the present case is covered by the Uttarakhand Municipalities Act, 1916. Section 293 of the Uttarakhand Municipalities Act, 1916 empowers the Municipality to charge fees for the use or occupation of any immovable property vested in, or entrusted to the management of the Municipality. However, as the subject property is neither vested in, nor entrusted to the Municipality, Section 293 of the Uttarakhand Municipalities Act, 1916, would not cover the case.

Fourthly, the reliance placed by the petitioner on Section 293A of the Uttarakhand Municipalities Act, 1916, is highly misplaced. For, Section 293A of the Uttarakhand Municipalities Act, 1916, is an enabling provision which merely empowers the Municipality to levy fee for the use