Mst. Suggan and Others vs Abdul Karim and Others

This is a reference de u/s 319 of the U.P. Municipalities Act by the District Magistrate of Rae Bareli.

It appears that the Municipal Board of Rae Bareli granted permission to Abdul Karim and Sharfuddin for certain instructions by resolution No. 138, dated ,the(sic) January, 1945 An appeal against an(sic) order was made to the District Magistrate u/s 318 of the Municipalities Act. The appeal was decided by the predecessor of Shri Rameshwar Dayal who had made the present reference. The appeal was decided on 21st June, 1946, and the permission granted by the Board was cancelled. Abdul Karim and Sharfuddin then applied on 10th August, 1946, for review of the order cancelling the permission. No order was passed till 25th April, 1947, when the previous order of 2lst June, 1946, was modified. Mst. Buggan, Mst. Zahuran, Mst. Ghuran and Sankatha then applied again before the District Magistrate on the 14th July, 1947, for review of the order of the District Magistrate u/s 321(2) of the Municipalities Act. Thereupon the District Magistrate has purported to act u/s 319 of the Municipalities Act and forwarded the papers to this Court for interpretation of the words "order passed within three months from the date of his original order" occurring in the proviso to Sub-Section 2 of Section 321 of the Municipalities Act.

On behalf of Abdul Karim and Sharfuddin it has been contended as a preliminary point that this reference does not comply with the requirements of Section 319 and is, therefore, incompetent. No body appears on behalf of Mst. Buggan and others. The contention of learned Counsel for Abdul Karim and Sharfuddin must prevail. It will be seen that the application of Mst. Buggan and others was given on 14th July, 1947, not when the appeal was given being heard but long after the appeal had been decided. Section 319, Sub-section (1) authorises the appellate authority to make the reference if there is any doubt as to the legality of the prohibition, direction notice or order appealed against at the time of the hearing of the appeal. There is no such doubt expressed by the District Magistrate. His doubt is with respect to the meaning of certain words in the proviso to Section 321(2) of the Municipalities Act. Clearly in the present case the essential requirement was not complied with. Further Section 319 requires the District Magistrate to express his own opinion which in this case he has not done. We have no hesitation in holding that the reference made by the learned District Magistrate does not comply with the requirements of Section 319(1). The reference is, in the circumstances, incompetent and is hereby rejected.