- (1.) ANJANI Kumar and Sabhajeet Yadav, JJ. By this petition, the petitioner has sought relief in the nature of writ of certiorari for quashing the communication order dated 27. 6. 1992 passed by Executive Officer, Nagar Palika, Saharanpur, contained in Annexure-4 of the writ petition, whereby the petitioner was communicated that the District Magistrate /administrator of Nagar Palika, Saharanpur, vide order dated 24. 6. 1992 has quashed the resolution No. 1818 dated 7. 9. 1991 in respect of allotment of Tube-well House No. 3 to the petitioner on hire-purchase basis.
(2.) THE relief sought in the writ petition rests on fact that the room of Old Pump House No. 3 situated at Gandhi Park in Saharanpur was initially allotted in the name of the wife of petitioner on 19. 11. 1984 and later on it was allotted in the name of the petitioner on 28. 6. 1989 on a monthly rent of Rs. 30 and the petitioner alongwith his family is residing in the said house since 19. 11. 1984. It is stated that the petitioner is also employee of Nagar Palika, Saharanpur. Similarly Suresh Chandra Agrawal and Irfan Ahmad Shamsi are also residing in house Nos. 2 and 4 of the old Tube-well House and the petitioner alongwith Suresh Chandra Agrawal and Irfan Ahmad Shamsi made an application to the President Municipal Board, Saharanpur on 6. 2. 1991 to sell the aforesaid old three Tubewell houses on hire purchase to the petitioner and other two in the same way in which the houses at Chilkana Road in the Municipal Colony were sold and one instalment had already been paid by the residents of the Colony. THE application aforesaid was recommended by most of the members of the Board. A true copy of the said application is enclosed as Annexure No. 1 to the writ petition. THE estimate of the aforesaid three old pump houses was called for and was prepared by the Junior Engineer of Municipal Board on the order of Municipal Engineer and was submitted on 12. 3. 1991. A true copy of the report is enclosed as Annexure-2 to the writ petition. THE President, Municipal Board, Saharanpur put the aforesaid matter before the House as resolution No. 1818 dated 7. 9. 1991. THE said resolution was passed unanimously. A true copy of the resolution is enclosed as Annexure-3 to the writ petition. It was further stated in the writ petition that due to internal disturbances in the Municipal Board, Saharanpur, the Board was suspended in April, 1992 and the District Magistrate, Saharanpur was appointed Administrator of the Board under Section 30 of the U. P. Municipalities Act, 1916, hereinafter called as the Act. According to the provision of the Act, all powers of the Board are vested in the Administrator. According to Section 94 (6) of the Act if the aforesaid resolution dated 7. 9. 1991 was not cancelled or modified within 6 months, then thereafter on expiry of six months, the said resolution could not be cancelled ; but the respondent No. 1 without following the provisions of Section 94 cancelled the said resolution vide order dated 24. 6. 1992 after expiry of a period of more than six months from the date of the said resolution and the cancellation was communicated to the petitioner by respondent No. 2 vide letter dated 27. 6. 1992. A true copy of the letter is enclosed as Annexure-4 to the writ petition. According to the petitioner, the respondent No. 1 acted illegally in cancelling the resolution dated 7. 9. 1991 passed by duly constituted Board without following the procedure set forth in Section 94 (6) (i) (ii) of the Act and that too after expiry of a period of more than six months from the date of said resolution. THE respondent No. 1 did not consider the case of the locality of Chilkana Road, Saharanpur who are also the similarly situated persons. Petitioner has been discriminated from them and denied the protection of Article 14 of the Constitution. THE respondent No. 1 acted erroneously in cancelling the resolution dated 7. 9. 1991, wherein the provisions of Sections 34 (I) (IA) and (IB) are not attracted. Besides the averments made in the writ petition, the petitioner has also filed a supplementary- affidavit in the writ petition in February, 2003, but the copy of which is not on record, therefore, learned counsel for the petitioner was asked to supply a typed copy of the aforesaid supplementary-affidavit dated 18. 2. 2003 and the same is made part of record. By this supplementary-affidavit the petitioner has brought a copy of the order of District Magistrate, Saharanpur dated 24. 6. 1992 which was referred to in communication letter dated 27. 6. 1992 and in fact was not supplied to the petitioner alongwith the aforesaid communication letter dated 27. 6. 1992 of Executive Officer, Nagar Palika, Saharanpur. By this order dated 24. 6. 1992 the District Magistrate, Saharanpur purporting to act as Administrator Nagar Palika, Saharanpur has cancelled the resolution No. 1818 dated 7. 9. 1991 whereby the allotment of Tube-well House Nos. 2, 3 and 4 were made to Sri Suresh Chandra Agrawal, Sri Ramesh Kumar (petitioner) and Sri Irfan Ahmad Shamsi and is marked as Annexure SA-1 to this supplementary-affidavit. The petitioner has sought relief for quashing the order dated 24. 6. 1992 passed by Administrator Nagar Palika, Saharanpur contained in Annexure-SA-1 to this affidavit. In Para 6 of this supplementary-affidavit it is also stated that Nagar Palika Parishad, Saharanpur passed a resolution No. 339 dated 26. 5. 1996 to the effect that price of land proposed to be sold may be the same which was fixed earlier, a copy of which is on record as Annexure-SA-2 to this affidavit. Thereafter the petitioner has filed another supplementary-affidavit, termed as second supplementary-affidavit, whereby he has brought a Government order dated 24. 5. 2000 contained as Annexure-SA-1 to this affidavit. In Paras 3 and 4 of this supplementary-affidavit it is stated that the Government has chalked out a policy and prescribed procedure for disposal of property of Nagar Palika Parishad on the basis of which the Director of the Local Bodies and all the District Magistrates and Divisional Commissioners and Chief Executive Officers of Nagar Nigam were directed to take action in accordance with the said procedure. A detailed counter-affidavit has been filed by Sri Badarul Zaman, Clerk in Nagar Palika Parishad, Saharanpur on behalf of Nagar Palika Parishad, Saharanpur, whereby the action taken by the respondents is sought to be justified. In Para 3 of the counter-affidavit it is stated that the contents of Para 2 of the writ petition are not admitted as stated. Sri Suresh Chandra Agrawal has not been given possession till date in Tube-well House No. 2 and is not residing there. The allotment in favour of Sri Irfan Ahmad Shamsi relates to Tube-well House No. 2 which has been cancelled and proceeding under the Public Premises Eviction of Unauthorised Occupant Act are pending against him, however. Irfan Ahmad Shamsi has also preferred a writ petition in the High Court but no interim order has been passed in the said writ petition. In Para 4 of the counter-affidavit it is stated that the contents of Para 3 of the writ petition are not admitted as stated. The true facts are that petitioner and other two employees of Nagar Palika Parishad, Saharanpur had moved a joint application on 6. 2. 1991 for taking the accommodation on hire purchase. On this application, contrary to what has been stated in para under reply, there is no signature of any member of Nagar Palika Parishad, Saharanpur. The proposal of the Board for hire purchase of the Municipal Colony at Chilkana Road has been rescinded by the then Administrator. In Para 6 of the counter-affidavit it is stated that the Board was superseded in April, 1992 and an Administrator was appointed. In Para 8 of the counter-affidavit the interpretation given by the petitioner in respect of provisions of Section 94 (6) of the Act has been refuted and it is stated that resolution dated 7. 9. 1991 was not confirmed and it was cancelled by the letter dated 26. 7. 1992. In Para 11 of the counter-affidavit it is stated that by resolution dated 7. 9. 1991 it was proposed to allot on hire purchase basis the Municipal Colony at Chilkana Road to its occupants and in pursuance of said resolution one and two instalments were also accepted. Subsequently, Administrator cancelled the above resolution and the allottees were informed accordingly.
(3.) WE have heard learned counsel for the parties and also perused the record. Sri L. N. Pandey, learned counsel appearing for the petitioner has submitted that the Board of Municipality is empowered to transfer the property vested in it under Section 124 of the U. P. Municipalities Act and since the Board has passed resolution transferring the property in question in favour of petitioner on hire purchase basis and resolution passed by the Board has not been rescinded within a period of six months according to the procedure prescribed under Section 94 (6) of the Act, therefore, the impugned order passed by the Administrator exercising the power of Board after expiry of six months from the date of resolution without observing the procedure, cannot be sustained.;