M.N.SHUKLA, J. - (1.) THIS is a writ petition praying for a writ of mandamus commanding the respondents not to demolish the peti­tioner's shop No. 89, situate in Mohalla Taju Khel in the city of Shahjahanpur.
(2.) THE allegations made by the petitioner are that he is the owner of the aforesaid shop which was a 'Pucca' construction, built by him long ago on the basis of a plan duly sanctioned by respondent No. 1, namely, the City Board, Shahjahanpur. The shop was thereafter as­sessed by the Board for purposes of House Tax and Water Tax and the petitioner had been regularly paying taxes to the City Board. It is alleged that some officials of the City Board, however, recently arrived on the spot and threatened that in case the aforesaid construc­tion was not dismantled by the petitioner himself, it would be got demolished by them at the petitioner's cost. It was in these circum­stances that the petitioner filed the present writ petition Counter affidavits have been filed, both on behalf of the District Magistrate, Shahjahanpur, who is arrayed as respondent No. 2 and the City Board, Shahjahanpur, which is arrayed as respondent No. 1. The main allegations in the counter affidavit filed on behalf of the City Board are that he petitioner was asked by its officials to remove the encroachment failing which, he was told, they would be removed by the Board itself. It is, however, explicitly stated in the counter affidavit of the City Board that the Board was intending to remove the Chabutra only which had been made by the petitioner on Muni­cipal land in violation of the sanction and was, therefore, an encroach­ment. Thus, it is manifest from the pleading of the parties that the incident as alleged in the writ petition did take place, that some officials of the Board visited the spot and asked the petitioner to re­move the encroachment and in the even of his failing to do so the demolition thereof was threatened, Apart from the facts stated above, it is not the respondents' case that any written notice was served on the petitioner. In other words, the respondent No. 1 was relying only on the oral notice given by the officials of the Board for the removal of an alleged encroachment. Learned counsel for the petitioner contended that the case would come only within the am­bit of Section 211 of the U.P. Municipalities Act (hereinafter refer­red to as the Act) which deals with the power of removing encroach­ments and projections and for which oral notice was not sufficient. Section 211 of the Act runs as follows: - "211. Power to remove encroachment and projections over stress and drains. The board may, by notice require the owner or occupier of a building to remove, or to alter a projection or structure overhanging, projecting into or encroaching on a street, or into, on or over any drain, sewer or aqueduct therein: Provided that in the case of any such projection or structure lawfully in existence on or before the tenth day of March, 1900, the Board shall make compensation for any damage caused by the removal or alteration, which shall not exceed ten times the cost of erection and demolition."
(3.) ON the other hand, Sri Asif Ansari representing the City Board, Shohjahanpur before us submits that a written notice was not requir­ed under Section 211 of the Act and an oral notice was sufficient com­pliance of the provisions of law. As already observed, admittedly there was no written notice. According to Sri Ansari the action taken by the officials of respondent No. 1 on the spot unmistakably amounted to an oral notice to the petitioner, apprising him of the action contemplated to be taken against him by the Board and that was sufficient. The answer to the above question would depend on an interpretation of the provisions of Section 211 and other connected provisions of the Act indicating the powers of the Board with regard to these matters and the safeguards intended to be provided by the Act to the persons against whom action for removal of encroachment or projections etc. may be taken. Learned counsel for the respondents drew our attention to Sec­tion 186 of the Act in which according to him the Legislature had advisedly used a different language. This section reads as under: "186. power of Board to stop erection, and to demolish building erected. The board may at any time by written notice direct the owner or occupier of any land to stop erection or alteration of a building or part of a building or the construction or enlargement of a well thereon in any case where the Board considers that such erection, re-erection, alteration, construction or enlarge­ment is an offence under Section 185 and may in like manner, direct the alteration or demolition as it deems necessary of the building, part of a building, or the well, as the case may be." ;