Decided on December 02,1969



KRISHNAN J - (1.) IN this petition by one of the residents of Khachrod which is a class III municipality the prayer is that the appellate order of the Collector, Ujjain made under section 308 of the M.P. Municipalities Act, 1961. cancelling the permission granted to the petitioner for putting up a certain construction should be quashed by an appropriate writ or order and the permission granted by the president of the municipality under section 187 should be revived. The only material questions are (i) whether the Collector was competent to entertain an appeal by respondent No. 4 because of his being a 'person aggrieved" ; (ii) secondly, whether there was any defect in the manner of presenting the appeal and the defect was of that kind as should be noticed by this Court in a writ proceeding as having occasioned the failure of justice ; (ii) thirdly, whether the Collector in making the appellate order took into account any extraneous fact or circumstance and that extraneous fact or circumstance has vitiated the entire order.
(2.) THE facts leading to this petition are the following : In one of the streets of this town - which according to the petitioner is not a very busy one we have the houses of the petitioner and not far away the houses of respondent No. 4. From the order of the president of the municipality granting the permission, it appears that the petitioner on the one hand and the respondent No. 4 on the other have been members of opposing factions in what may be called the municipal politics or squables, and while the outgoing president Shri Nigam has been described as a partisan of respondent No. 4, the president who has granted the permission has by the very trend of the order given indication of being a partisan of the petitioner. THE whole thing is unfortunate, the result was while the petitioner had failed in getting the permission to put up his structure in the manner he wanted, on two previous occasions when there was somebody else in the chair of the municipal president he got it on the third occasion from the present president. THE president's own order is a speaking order and contains a good deal of matter that is really irrelevant to the subject-matter properly noticeable by him while examining the prayer for permission under section 187 of the Municipalities Act. Anyway, the prayer having been granted the respondent No. 4 describing himself as a person aggrieved sought and obtained leave from the Collector of the District at Ujjain to file his appeal under section 308 of the Act. THE Collector having heard the parties decided that the president had allowed his order to be coloured by a good deal of extraneous material and further that in the interest of public convenience and safety the permission should be cancelled. Apropos of the president's order holding that the land on which the petitioner had sought permission to build was his property the Collector observed that the materials were quite insufficient and there was no evidence that it belonged to the petitioner. But the real ground on which the appeal has been allowed is contained in the operative part of the Collector's order, and is to the effect that to permit the petitioner to build in the manner he wanted was to narrow down a public lane of 10 feet width to one of 4 feet, and thereby inconvenience the residents of that locality in their movements to their and their neighbours' houses. THE petitioner has come up with this petition urging that the respondent No. 4 had no locus standi to file the appeal and that appeal itself was defective because it had not been accompanied by a copy of the order appealed against and further that the Collector had misguided himself with certain notions about title to the strip of land on which building permission had been sought. THEse points have been canvassed at some length and with citation of case-law. The scheme of the Municipalities Act is to divide municipalities into different classes and in respect of the office-holders and councillors of Class III and Class IV municipalities put some checks and controlling power in the hands of the Collector of the District. As usual in all Municipalities Acts, here also it is provided that before constructing any house or similar structure the builder should take the permission of the municipality which may be granted or refused,- or granted with conditions by the president. Unlike the municipalities of Class I and II, in the case of municipalities of Class III and IV orders made under a number of sections are open to appeal before the Collector. In genaral, and also in terms of section 308 of the Act this right of appeal accrues to "the person aggrieved," and the Collector being the appellate authority can examine all the matters as could be noticed by the president and can form opinions and give findings either in support or in variance of those recorded by the president. Question (i) : It has been urged in all seriousness that the respondent No. 4 not having been a party to the proceedings before the president he was not an "aggrieved person" and as such could not file any appeal ; and the Collector should not have therefore given him leave to file one. The factual position is that the respondent No. 4 did try to get a hearing before the president which was refused. Surprisingly enough, the president's own order contains a good deal about the respondent No. 4,- how he was of the faction of the outgoing president, and how to oblige him the outgoing president had refused building permission to the petitioner and so on. But even without going into the president's attitude to the respondent No. 4 - which makes it extremely likely that he refused hearing in the manner the respondent No. 4 himself alleges, we can see whether the permission granted has caused a grievance to the respondent No. 4. As already indicated, this respondent lives in a house which opens on the same road or lane on which the permission to build has been sought. The petitioner has described it as a "blind lane," that is to say, one which stops shortly after the frontage of the petitioner's house. The idea seems to be that nobody would Suffer even if the width of the lane available to the users is drastically reduced. On the other hand, the report of the Chief Municipal Officer and the allegations of the respondent No 4 indicate that the lane leads farther than these two or three houses. Anyway, it is common ground that this lane is one of the approaches to the houses of the father of the respondent No. 4 in which he lives. In other words, the respondent No. 4 is one of the persons living in that locality and using that lane as a public path or road to his and other people's houses. A citizen is entitled to the use of every inch of government or municipal land earmarked as a public pathway or road and any restriction of the available width is pro tanto a reduction of the convenience and safety afforded to him by the municipality. Thus the mere fact that the proposed construction seeks to reduce the width of the public lane available to the respondent is itself a grievance. There are no doubt cases of the kind that form lis or contention between two parties with which a third party has no concern. Accordingly if the third party seeks to appeal from the order it can be shut out because it is not aggrieved. Even in general litigation the rule that only the party to a litigation in a Court can challenge that Court's judgment in appeal is subject to different exceptions. Even a party who is not represented in the hearing before the lower tribunal can in appropriate cases seek leave in the appellate tribunal to challange the judgment of that lower tribunal or authority. In such cases the test is, whether the person seeking leave to appeal is affected in some or other manner which is noticeable by the appellate tribunal. If he is affected - and affected adversely, he is a person "agrieved." In the instant case the respondent No. 4 has been affected and affected adversely by the building permission granted by the president to the petitioner. Obviously he is a person aggrieved though by the very nature of the permission proceedings he would not be a party at the initial stages. In fact, he asserts he sought to become a party when the matter came up before the president and was refused a hearing. From the language and contents of the president's own order we would be inclined to believe this; but that is not the real point now. The respondent No. 4 is adversely affected, and therefore comes within the description of an "aggrieved person." And the Collector was right in giving him leave to file an appeal under section 308 of the Act. In fact it would have been wrong for the Collector to have refused to entertain the appeal for what it was worth. Question (ii) :
(3.) THESE appellate proceedings before the Collector like all proceedings of the kind should have been initiated by the presentation of a memorandum accompanied by a certified copy of the order which the appellant was seeking to assail. This is clear enough and it would be open to the appellate authority to reject the appeal if unaccompanied by such an order or to give the appellant sufficient time either to produce the copy or to explain why it was not being filed. In the instant case the respondent No. 4 filing the appeal before the Collector did not attach to his memorandum a copy of the order of the president. His explanation was that he had applied for it, paid the appropriate fees and was still refused. It is certainly conceivable that having persisted and waited for some time the respondent No. 4 could have got his copy from the office of the municipality and could have filed it, the question being only one of time. However, his explanation being tacitly accepted, the Collector proceeded to deal with the appeal, sent for the record, heard the parties, and passed his order. In other words, the omission on the part of the respondent No. 4 to file copy of the order did not in the least manner lead to any miscarriage of justice or incompleteness of the hearing before the appellate tribunal. The present proceeding is one in exercise of extraordinary jurisdiction where it is not every defect or omission that calls for notice by us. We may in our discretion refuse to notice some omissions though in the event of our being a regular appellate authority under the Civil Procedure Code it may be obligatory for us to notice an omission by a party for what it is worth. The criterion for noticing an omission of a mechanical act on the part of a litigant" is simple : Has that omission led to a miscarriage of justice by hampering either the lower tribunal or any of the parties before it in either doing justice or presenting their case ? If there has been no such hampering, in proceedings under Article 226 of the Constitution we may not notice any omission. The omission on the part of the respondent No. 4 to file copy of the president's order before the Collector is of this kind. The Collector did not find the least difficulty in disposing of the appeal justly and completely because the entire record including the president's order was before him. Nor did the petitioner himself find any difficulty in presenting his case; and as for the respondent he does not even say he had any difficulty. Thus, whether or not the respondent's explanation of his failure to file a copy of the president's order is satisfactory, his omission to file it before the Collector is not a defect that calls for our notice. Question (iii) : It is urged that the Collector has in his appellate order misdirected himself into assuming that there was no evidence that the petitioner was the owner of this strip of land on which he sought permission to build, accordingly the prayer is that the appellate order should be quashed because we do not know to what extent it has been coloured by the wrong impression in the mind of the appellate authority that the land did not belong to the petitioner. A study of the appellate order and of the president's order to which part of the appellate order necessarily refers shows that this argument is put out with a show of simplicity and is actually fallacious. In principle whether or not permission should be granted by the municipality to build over a piece of land does not always depend upon ownership, in other words, the mere fact that the applicant for permission is the owner of the land does not by itself entitle him to the permission While granting permission the municipal authorities have to bear in mind various factors including the principle of convenience, safety and sanitation ; and may quite understandably refuse permission to the owner himself to build on his own land. Certainly, this should be done only in appropriate circumstances; but whether the circumstances and the situation justifies a refusal of permission to build to the owner himself would be a matter within the competence of the municipality and the appellate authority, if any, and cannot be examined in a writ petition. What can, however, be examined in theory is the allegation that either the municipality or the appellate authority has completely misguided itself into basing its order on material which is altogether irrelevant. That is not the position here. Whether or not the petitioner was the owner of the strip of additional 2 feet of land abutting into the lane, the appellate authority was not going to permit building over it, for reasons which it has given in para 6 and which are valid in any event. If the land did not belong to the petitioner permission could not in any event be granted; if the land did belong to him and permission was being refused and he was being compelled to leave it open and unbuilt for the benefit of the users of the road or pathway nearby, this Court cannot order the municipality to permit the building. Thus, as far as the operative part of the order goes, the position is that the Collector as appellate authority has not been guided by any impression that the additional strip was not the property of the petitioner.;

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