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Mohammad Iqbal v. State Of U.P. And Others - WRIT - C No. 70369 of 2005  RD-AH 5706 (14 November 2005)
Court No. 36
Civil Misc. Writ Petition No. 70369 of 2005
Mohammad Iqbal v State of U.P. and others
Hon'ble Sushil Harkauli, J.
Hon'ble Saroj Bala,J.
We have heard the learned counsel for the petitioner, the learned Standing Counsel and Sri D.C. Tripathi, for the caveator. The order of mutation has been passed in favour of the respondent no. 6.
Earlier the prayer for mutation by respondent no. 6 had been rejected by the Committee. She moved an application before the Mayor which was again referred for consideration and this time the Committee has passed a reasoned order directing mutation in favour of respondent no. 6.
The learned counsel for the petitioner has relied upon a decision of the learned Single Judge of this Court in the case of Keshav Lal Khatri and others v Mukhya Nagar Adhikari, Nagar Maha Palika, Varanasi and others reported in 1998 (3) A.W.C. 1712 for the proposition that although there is implied power of review, but the order under section 213 of the U.P. Municipal Corpoations Adhiniyam, 1959 being appealable, the Mayor does not have power to set aside the order of the Executive Committee.
In the present case the Mayor has not set aside the order of the Executive Committee but has referred the application of the respondent no. 6 to the Committee itself for reconsideration. It has also been held in the aforesaid decision of Keshav Lal that the Committee have implied power of review.
The order of the Executive Committee is a reasoned order and involves questions of fact.
In the circumstances, prima facie the petitioner should have appealed against the order u/s 213 by virtue of Section 472.
However, the learned counsel for the petitioner has contended that because no notice was given to the petitioner before passing the mutation order dated 17.10.2002, therefore the appeal by the petitioner would be barred u/s 472 (2)(d).
Having examined the said provision we are of the opinion that this objection by the learned counsel for the petitioner cannot be sustained on the facts of this case. The application of the petitioner seeking mutation in favour of the petitioner is pending only technically. After the order dated 17.10.2002 the application of the petitioner must be treated to be rejected.
Secondly, according to the impugned order notice was given to Gulrez Ahmad from whom the petitioner has purchased the property. Once the predecessor-in-interest of the petitioner has been heard, it must be assumed for the purpose of Section 472 (2) (d) that the objection to mutation by the petitioner (who is bound by action of his predecessor-in-interest) has been considered and rejected. Therefore, the appeal by the petitioner would be maintainable under section 472.
If the petitioner prefers an appeal against the order, showing the cause for delay the appellate authority will consider the matter in the light of the aforesaid as well as the fact that the petitioner has been pursuing this remedy which has been found by this Court not to be the appropriate legal remedy. The appellate authority will also take into account, while considering the question of condonation of delay, that the petitioner also has remedy of instituting a civil suit for adjudicating the title of his predecessor-in-interest. Therefore, the delay condonation application will not be refused on technical grounds.
The writ petition is disposed of as above.
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