S.C.Mathur, J. - (1.) HUSAIN Ahmad has directed this petition against rejection of his application for sanctioning plan of his proposed construction under the provisions of the U. P. Municipalities Act, 1916. The santion has been refused on the basis that the land over which construction is sought to be made, belongs to the Nazul and is vested for management in the Nagar Palika, opposite party No. 2. After the application for sanction was rejected, the petitioner preferred appeal before the Chief Judicial Magistrate, Faizabad but the same was rejected by order, dated 31-10-1977, Annexure No. 2.
(2.) THE learned counsel for the petitioner has challenged the above orders on two grounds-(1) THE sanction could not be refused on the ground of title. (2) THE sanction already stood accorded under sub-section (3) of section 180 and, therefore, there was no question of refusing the sanction. Sub-section (3) of Section 180 provides as follows :- "should the board neglect or omit for one month after the receipt of a valid notice under section 178 to make and deliver to the person who has given such notice and of the nature specified in sub-section (1) in respect thereof, such person may by a written communication call the attention of the board to the omission or neglect, and, if such omission or neglect continues for a further period of fifteen days, the board shall be deemed to have sanctioned the proposed work absolutely :" Learned counsel argued that the petitioner had applied for sanction on 1-7-76 but the application was not disposed of within one month and, thereafter, the petitioner made a written communication on 8-9-1976 drawing attention of the Municipal Board to the omission and neglect but inspite of this no order was passed and the permission thus stood accorded. This question does not appear to have been raised before the Chief Judicial Magistrate, Faizabad, opposite party no. 1 who heard the petitioner's appeal. The order does not refer to any such argument and the petitioner too has not stated in the writ petition that any such argument was advanced before him. A copy of the memorandum of appeal has also not been placed on record. The petitioner's allegation that a written communication was sent on 8-9-1976, has not been accepted on behalf of the Municipal Board. In the circumstances, the plea cannot be entertained at this stage. So far as the first question is concerned, the learned counsel's argument was that the sanction could be refused only if the plan contravened the bye laws or affected public health or safety. The argument was based on the provision contained in sub-section (1) of section 180. On the other hand on behalf of the Nagar Palika it was argued by its learned counsel that the sanction could be refused on other relevant grounds also. According to the learned counsel the relevant ground in the present case was that the property belonged to Nazul and the same was in the management of the Board and it was the statutory duty of the Board to protect the property so vesting. The learned counsel relied upon clause (q) of section 7 of the U. P. Municipalities Act, 1916. In support of the same argument the learned counsel has also relied upon clause (f) of Section 116. He has further cited 1968 Allahabad Law Journal 197, Shanker Lal v. Municipal Board of Auraiya.
(3.) THE provisions dealing with the sanction of building plans are contained in Chapter VII of the Act. Section 178 requires a notice to be given to the Board regarding erection of a new building or a new part of the building. Sub-section (1) of section 180 provides as follows :- "180. Sanction of work by Board.-(1) Subject to the provisions of any bye law the board may either refuse to sanction any work of which notice has been given under section 178 or may sanction it absolutely or subject to- (a) any written directions that the board deems fit to issue in respect of all or any of the matters mentioned in sub-head (h) of heading A of section 298, or (b) a written direction requiring the set-back of the building or part of a building to the regular line of the street prescribed under section 222, or, in default of any regular line prescribed under that section, to the line of frontage of any neighbouring buildings." On the basis of the use of the words 'subject to the provisions of any bye-law' the learned counsel argued that unless there was breach of a bye-law, the sanction could not be refused. I am unable to agree with the submission of the learned counsel. THE meaning of these words is that the sanction will have to conform to the bye-laws framed by the board. THEse words do not limit the jurisdiction of the board to refuse sanction only when there is infringement of a bye-law While refusing sanction the board can take into account all relevant facts including the fact that there was no conflict with any of its statutory duties. Section 7 prescribes the duties of the board. In clause (q) it is mentioned thus :- "protecting, maintaining and developing the property vested in, or entrusted to the management of the board." In view of the above provisions if a property is vested in the board or is entrusted to it for management, it is the duty of the board to protect it, to maintain it, and to develop it. The board will be failing in the discharge of its statutory duty if it allows such property to be occupied by others without obtaining valid title thereto. In respect of a Nazul land title could be acquired by obtaining a lease-deed or any other deed of transfer. It is not the petitioner's case that he has obtained any lease deed or any deed of transfer. The petitioner's case on the other hand is that he is himself the Bhumidhar of the land in dispute. In proceedings for sanction of plan this dispute on question of title of course could not be gone into but if the property was entered in the property register of Nazul and was vesting in the Municipal Board, the Municipal Board could with justification refuse to sanction the plan. In the present case the title vests prima facie in the Nazul. Along with the counter affidavit Nazul Intakhab Register Bandobast for the year 1337 Fasli was filed in which plot no. 726-Ba has been recorded in the name of Nazul. In paragraph 3 of the counter affidavit also it has been asserted that throughout, the plot in question has been a Nazul land. In the circumstances, it cannot be said that the sanction was refused on extraneous considerations.;