By means of this writ petition the petitioner is challenging the order dated 9.9.2014 passed by the Additional District Judge, Court No.12, Bareilly in Civil appeal No. 36 of 2005. By the said order the Municipal Commissioner, Bareilly has been summoned before the court.
The facts of the case are that a suit was filed being Suit No. 110 of 2004 for permanent injunction by the respondents. The injunction that was sought was against the Nagar Nigam, Bareilly not to interfere in the possession of the respondent-plainitff over the property in question. As usual the Nagar Nigam did not prosecute the case properly and the suit was decreed ex parte by decree and order dated 4.5.2005. Against the aforesaid decree the present appeal has been filed.
According to the petitioner-Nagar Nigam, the property in dispute is a drain and side of the road upon which the plainitff-respondent has made his construction without any legal right and is a rank trespasser and encroacher. The court below, however, quoting the opinion of the National Legal Services Authority and the State Legal Services Authority has held that a resolution of dispute by mechanism of mediation is a better alternative and, therefore, the Commissioner may come for the purpose of resolving the dispute through a compromise and mediation. It is submitted that the Municipal Commissioner has already submitted his written argument under Order XVIII Rule 2(3-A) CPC wherein it has been stated that he has no authority to enter into compromise with regard to a property which is recorded as a road side and a drain and the appeal be decided on merit. The court below, however, insisted upon the Judicial Commissioner to appear before it for resolving the dispute.
Sri Shiv Nath Singh, learned counsel appearing for the petitiioner submits that when the property in question is recorded as a road side and a 'nala,' the Municipal Commissioner has no authority to enter into any kind of compromise for State property and the suit is to be decided on merit, as such, personal appearance only to enter into a compromise is uncalled for. However, he submits that the Municipal Commissioner has no hesitation in appearing before the court if for the proper reason he is summoned.
Prima facie, the Municipal Commissioner has no authority to enter into compromise with regard to a property belonging to State with any person or party without prior approval of the State.
The matter requires consideration.
The respondents may file counter affidavit within one month.
List thereafter.
Till the next date of listing, the operation of the impugned order dated 9.9.2014 shall remain stayed. It is, however, provided that the appeal may be proceeded with and decided in accordance with law, without granting unnecessary adjournment to either of the parties.
Order Date :- 16.9.2014 SKM