Decided on March 15,1967

SUGNI BAI Appellant


- (1.)THIS is a petition under Art. 226 of the Constitution for issuing a writ of prohibition against the Additional Collector, Bikaner, prohibiting him from hearing an appeal against an appellate order of the Municipal Board, Bikaner, passed under sec. 311 of the Rajasthan Municipalities Act 1959. The petition has been contested on behalf of respondents 2 to 8.
(2.)THE petitioner Smt. Sugni Bai is the owner of some land. She applied to the Municipal Board, Bikaner, for permission to make constructions on the land under sec. 170 (1 ). This permission was granted by the Municipal Commissioner to whom the requisite powers under sec. 170 had been delegated under sec. 78. No appeal was preferred against that order. Respondents 2 to 8 however filed an application to the Municipal Commissioner on 22. 9. 62 objecting to the grant of the permission. On this he issued an order restraining the petitioner from making constructions pending disposal of the objection. At the hearing of the application of respondents 2 to 8 the petitioner volunteered to leave a 4 ft. wide passage. THE Commissioner again accorded permission subject to the condition that the petitioner complied with the offer.
Respondents 2 to 8 filed an appeal against the order of the Municipal Commissioner to the Administrator who was at that time in charge of the Board. This appeal was dismissed by the Administrator on 13. 9. 63. Against the appellate order of the Administrator respondents 2 to 8 filed an appeal to the Collector purporting to be under sec. 170 (12 ). An objection was taken by the petitioner before the Additional Collector to whom the appeal was transferred for disposal that it was not maintainable as the Act contemplated only one appeal against an order granting permission to raise constructions under sec. 170. This objection was overruled. Against the order of the Additional Collector the present writ petition has been filed.

The relevant provisions of sec. 170 which are to be considered in this connection are those contained in sub-secs. (6), (12), (13) and (14) which run as follows : " (6) Save as otherwise provided in this Act or the rules or byelaws thereunder the board may - (a) give permission to execute any work of which notice has been given under sub sec. (1), or (b) impose in writing conditions in accordance with this Act and the rules and byelaws thereunder as to level, drainage, sanitation, design, materials and cubical capacity of rooms, doors, windows, and apertures for ventilation or as to the number of storeys to be erected or with reference to the location of the building in relation to any existing building or existing street or as to the purpose for which the building is to be used, or (c) direct that the work shall not be proceeded with, unless and until all questions connected with the respective location of the building and any public street have been decided to the satisfaction of the board. " " (12) Any person aggrieved by an order of a board under clause (a) or clause (b) or clause (c) of sub-sec. (6) or clause (a) or clause (b) of sub-sec. (11) may, within thirty days from the date of such order, exclusive of the time requisite for obtaining a copy thereof, appeal to the Collector and no such order shall be liable to be called in question otherwise than by such appeal". " (13) The appellate authority may, if it thinks fit, extend the period allowed by sub-sec. (12) for appeal. " " (14) The order of the appellate authority shall be final. "

It is not disputed that the Municipal Commissioner is an officer appointed under sec. 307 and an appeal lies from his order passed in exercise of the powers under sec. 170 delegated to him under sec 78 by virtue of the provision contained in sec. 311. The contention on behalf of the petitioner is that sub-sec. (12) of sec. 170 contemplates an original order passed by the Board under sub-sec. (6) and where the order u/sec. (6) is passed by the Municipal Commissioner sub-sec. (12) is not applicable to it and no appeal lies under that sub-section against the order of the Municipal Commissioner. An appeal lies against it under sec. 311 to the Board. The appellate order of the Board passed under sec. 311 cannot be treated to be an order of the Board under sub-sec. (6) of see. 170 and no appeal lies against it under sub-sec. (12) of that section.

On behalf of the contesting respondents on the other hand it is contended that even an appellate order passed by the Board under sec. 311 on appeal against an order of the Municipal Commissioner under sub-sec. (6) of Sec. 170 is an order of the board under sub-sec. (6) of sec. 170 in the sense that the appellate authority passing an order on appeal exercises the same powers under the statute as the original authority.

Having carefully considered the contentions of the respective parties I am of the opinion that a provision conferring a right of appeal should be liberally construed in favour of there being such a right. In this view of the matter I am of the opinion that the appellate order of the Board passed on appeal against an order of the Municipal Commissioner under sub-sec. (6) of sec. 170 is also an order of the Board under sub-see. (6) of sec. 170 within the meaning of sub-sec. (12) of that section against which an appeal lies to the Collector under sub-sec. (12 ). The order of the Collector on appeal is final and not the order of the Board on appeal against the order of the Municipal Commissioner.

I am accordingly of the opinion that the present appeal is maintainable and dismiss the Writ petition. In the circumstances of the case, I leave the parties to bear their own costs of this writ petition. .

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