1. These cases have been listed peremptorily under the previous orders of this Court and, therefore, cannot be adjourned. Heard Sri Ramadhar holding brief of Sri M.L. Maurya, who has filed a caveat in Writ Petition No. 66184 of 2012, which is the leading writ petition.
2. Sri S.K. Dwivedi, one of the counsels in the two writ petitions for the petitioners, has sent his illness slip. Even though, Sri I.N. Singh and Sri Ajay Yadav appear for the petitioners in the other writ petition, no counsel has turned up.
3. Affidavits have been exchanged between the parties. The Nagar Palika Parishad is represented by Sri Narendra Pratap Singh, who has also been heard. Sri C.K. Rai has assisted the Court on behalf of State the District Magistrate, Lalitpur. A counter-affidavit has also been filed in both the writ petitions.
4. The first writ petition has been filed, questioning the correctness of the order dated 10.7.2010, passed by District Magistrate, Lalitpur, in exercise of the powers u/s 34(1-A) of the U.P. Municipalities Act, 1916, whereby the District Magistrate has annulled the resolution dated 15.5.2008.
5. The said writ petition remained pending before this Court, during which period some of the allottees of the shops whose allotment had been cancelled, raised a protest whereafter an enquiry was held and again the successor District Magistrate of Lalitpur vide letter dated 12th May, 2011, copy whereof is Annexure-12 to the first writ petition, made a recommendation to the Commissioner Jhansi Division that the earlier order dated 10th July, 2010, which is impugned in Writ Petition No. 52269 of 2010, is void and a nullity.
6. A further recommendation was made to take appropriate action in the matter.
7. Thereafter, a fresh report was called for from the Sub Divisional Magistrate and he submitted a report on 27th November, 2012, indicating that since the earlier order dated 10th July, 2010 has not been annulled, it still continues to be in force.
8. In between, it also appears that the caveators in Writ Petition No. 66184 of 2012 also raised a protest against the illegal allotments and also prayed for fresh allotments in their favour. It is in the aforesaid documents that the District Magistrate threatened the shopkeepers with sealing. Consequently, the second writ petition was filed praying for quashing Annexure-14 to the writ petition, which is the report of the Sub Divisional Magistrate, Lalitpur, indicating the existence of the earlier order dated 10.7.2010.
9. Having heard the learned counsel, who are present and having perused the Section 34 of the U.P. Municipalities Act, 1916, it would be useful to extract the said provision hereinunder to understand the scope and powers of the District Magistrate as indicated in the order dated 10.7.2010. Section 34(1-A) of the said Act as follows:
The District Magistrate may, within the limits of his district, by order in writing, prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a [Municipality] or a committee of a [Municipality] or a Joint Committee or any officer or servant of a [Municipality] or of a Joint Committee if in his opinion such resolution or order is of a nature to cause or tend to cause danger to human life, health or safety, or a riot or affray, and may prohibit the doing or continuance by any person of any act, in pursuance of or under cover of such resolution or order.
10. A perusal of the said provision leaves no room for doubt that the District Magistrate has been authorized to act in order to annul or further stop the execution of any resolution, passed by the Nagar Palika Parishad, if in his opinion, such resolution or order is of a nature to cause or tend to cause danger to human life, health or safety, or riot or affray, and then he may pass an order for prohibition or continuance of any such resolution. In our opinion, the contingencies described in the aforesaid provision are exhaustive and not illustrative. The District Magistrate therefore can act only in such contingencies that may arise as described therein.
11. From the order impugned dated 10th July, 2010, we find that a complaint with regard to irregular allotments had been made, which in our opinion is neither a contingency of danger to human life, health or safety or a riot or affray. The District Magistrate therefore had no authority to proceed to pass such an order and in our view, the successor District Magistrate vide his letter dated 13th May, 2011 has expressed the correct position of law while making a recommendation for treating the said order to be void.
12. Consequently, for the reasons given hereinabove, the order dated 10.7.2010 cannot be sustained. It is hereby quashed and Writ Petition No. 52269 of 2010 is allowed.
13. Coming to the second relief in relation to Writ Petition No. 66184 of 2012, in view of the conclusions drawn hereinabove, the recommendation made by the Sub Divisional Magistrate dated 27th November, 2012, has no legs to stand and consequently, an order arising out of such recommendation for taking action against the petitioners also cannot be sustained. The aforesaid relief, therefore, also deserves to be granted. The order dated 10th July, 2010 having been quashed. The Writ Petition No. 66184 of 2012 also stands allowed on the same terms. Learned counsel for Nagar Palika Parishad contends that they are not resisting the claim of the petitioners, in so far as their continuance and allotments are concerned. However, in view of the complaints that have been made by the caveator, it shall be open to the competent authority to act in accordance with law or otherwise, in case, there are any other shops lying vacant and if the Nagar Palika Parishad proceeds for making any allotment, it shall be open to the caveators to apply for the same, which shall be considered in accordance with law.
