Sudhir Narain Agarwal, J. - (1.) THIS writ petition is directed against the order dated 22nd Feb. 1993, passed by the Additional Chief Judicial Magistrate, IInd, Jaunpur, deciding appeal No. 12 of 1986 and appeal No. 1 of 1987, arising out of mutation proceedings under the provisions of the U.P. Municipalities Act 1916 (hereinafter referred to as the Act). Briefly stated the facts are that shop No. 97 situate within Municipal limits of Shahganj, District Jaunpur, was recorded in the record of the Nagar Palika, Shahganj, in the name of Shajit, respondent No. 4. Tilakdhari, the petitioner, is real brother of respondent No. 4. On 1st October, 1985, he moved an application before the Executive Officer, Nagar Palika Shahganj, that he is actually owner in occupation of the shop in question and in the records of the Nagar Palika the name of his brother Sabhajit, is wrongly recorded and his name should have been recorded as, he is carrying on the business in the said shop. The Executive Officer, obtained a report of the clerk concerned and directed to remove the name of respondent No. 4, from the assessment list and for the substitution of the name of the petitioner by order dated 1 -10 -1985. He did not issue any notice to respondent No. 4. before passing the order on 1st October, 1985.
(2.) RESPONDENT No. 4, on coming to know of the said order passed by the Executive Officer, moved an application before the same officer to recall the said order on the allegation that he was not given any notice before the order dated 1st October, 1985 was passed by him. On the said application the Executive Officer took the view that the dispute between the parties related to the question of title and that could be determined by a competent court. He by order dated 14 -11 -86, directed the parties to get their rights determined in a competent court of law. He, however, did not recall his earlier order dated 1st October, 1985, with the result that the name of respondent No. 4, which was deleted from assessment list, remained deleted. Respondent No. 4 filed appeal No. 12 of 1986 before the Additional Chief Judicial Magistrate, Jaunpur, under the provisions of the U.P. Municipalities Act. He, alternatively, also filed a representation before the District Magistrate who was then acting as Administrator Nagar Palika, Shahganj to recall the order dated 14 -11 -86. He further filed suit No. 881 of 1987, in the court of Munsif Shahganj Jaunpur, against the petitioner for possession. The District Magistrate allowed the representation of the petitioner and the' order of the Executive Officer, dated 14 -11 -86 was set aside by order dated 24th December, 1986. He took the view that the Executive Officer should have recalled the order dated 1st October, 1985 as it was passed without giving opportunity of hearing to respondent No. 4. The petitioner against the order of the District Magistrate filed appeal No. 1 of 1987, before Additional Chief Judicial Magistrate. IInd Jaunpur. Both the appeals were heard by respondent No. 1. He allowed the appeal filed by respondent No. 4 by order dated 22nd Feb. 1993, and dismissed the appeal filed by the petitioner. He came to the conclusion that the Executive Officer acted illegally in deleting the name of the respondent from the assessment list of Nagar Palika and substituting the name of the petitioner without giving an opportunity of hearing to him. He remanded the case to the Executive Officer, for reconsidering the case on merits. Aggrieved against the orders the petitioner has filed this writ petition.
(3.) THE learned counsel for the petitioner submitted that after the order dated 14 -11 -86, was passed by the Executive Officer, respondent No. 4, filed suit No. 881 of 1987, in the court of Munsif, Shahganj, against the petitioner for possession and as such the proceedings' for alteration of name in the assessment list of the Nagar Palika should have been stayed and secondly the Executive Officer by order dated 14th November, 1986, had directed the parties to file suit to get determined their rights and title regarding the shop in question and respondent No. 4 having filed suit, there was no justification to set aside the said order. The order of respondent to consider the case on merit was based on erroneous approach of law and facts.;